[2] Whether an indemnity can be imposed under Article 80-2 of the former Road Act on a person who has no explicit permission to occupy and use a road, but is in a legal position to justify his/her occupation, use, and profit in light of specific circumstances (negative)

[3] In a case where the Korea Electric Power Corporation imposed indemnity on the occupation and use of a road for the purpose of maintaining and managing it after the completion of the project, on the ground that the Korea Electric Power Corporation had a legal status to justify its use and profit until the imposition of indemnity, the case holding that the above disposition was unlawful

Article 11 (1) 9 of the former Housing Site Development Promotion Act (amended by Act No. 6655 of Feb. 4, 2002) provides that a project operator shall be deemed to have obtained permission for the execution of a road and permission for the occupation and use of a road under the Road Act when he/she obtained approval for the execution of a housing site development project. Such legal fiction system aims to simplify administrative procedures in order to facilitate the implementation of the project. Thus, permission for the execution of a road and permission for the occupation and use of a road under the above approval for the execution plan shall, in principle, be deemed to have its validity only to the extent necessary to implement the relevant housing site development project. Therefore, even if the Plaintiff was laid underground as part of the project implementation plan in relation to the housing site development project of this case, it cannot be deemed that permission for the occupation and use of a road to continue to maintain and manage the land after

In the same purport, the lower court is justifiable to have rejected the Plaintiff’s assertion that this part of the Plaintiff’s assertion is deemed to have been granted permission for the maintenance and management of the instant power museum.

However, since the indemnity imposed under Article 80-2 of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) has punitive meaning against an unauthorized occupant who did not obtain permission to occupy and use a road under Article 40 of the same Act, even if there was no explicit permission to occupy and use a road, it shall be deemed that the indemnity cannot be imposed on a person in a legal position that can justify occupancy, use, or profit in light of specific circumstances (see Supreme Court Decision 2002Du1267, Mar. 14, 2003).

However, according to the records, the underground plan of this case was included in the implementation plan, such as attaching the underground plan plan to the application for the approval of the execution plan of the housing site development project of this case. At the time of the approval of the implementation plan, the defendant consulted with the road management agency of the road to be installed in the future. The permission of the execution plan was deemed to have been granted for the road site to be laid underground with the approval of the implementation plan, and the construction of the plaintiff's electric power station was performed as the legal obligation under the Housing Act. The plaintiff's occupation and use of the road of this case was naturally planned to be maintained and managed after the installation of the power station. However, even after the transfer of the road of this case to the defendant on December 31, 1999, the defendant did not take any measures to collect the usage fee or indemnity in relation to the road of this case for a long time, and the defendant requested the plaintiff to submit the construction status of the road of this case to the plaintiff on June 29, 2006 and imposed the indemnity of this case.

Examining all the circumstances regarding the occupation and use of the instant case, it is reasonable to view that, at least, the Defendant pointed out that it was an unauthorized occupation without permission for the Plaintiff’s occupation and use, and that the Plaintiff had a legal status to justify its use and profit-making until the disposition of imposing the instant indemnity was rendered.

Nevertheless, the court below erred by misapprehending the legal principles as to the requirements for imposing indemnity, which affected the conclusion of the judgment, on the part of the plaintiff.

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)