(영문) 울산지방법원 2020.11.19.선고 2018가합27283 판결

The defendant shall pay to the plaintiff 239,456,930 won with 5% interest per annum from October 31, 2018 to December 24, 2018, 15% interest per annum from December 25, 2018 to May 31, 2019, and 12% interest per annum from June 1, 2019 to the date of full payment.

Reasons

1. Basic facts

A. The defendant set up 14 obstacles for the purpose of electricity supply, etc. (hereinafter referred to as the "in the case") in the Ulsan-gun's two documents in Ulsan-gun, as shown in the attached Form No. 14. The location of 14 obstacles prior to the occurrence of the case is as listed in the attached Table.

B. On the other hand, Lpller Co., Ltd., Skbcom Co., Ltd., Skblined Bad Co., Ltd., Scomcom Co., Ltd., D, U.S. and JCUU Central Broadcasting Co., Ltd. (hereinafter collectively referred to as “communication companies”) entered into an agreement with the Defendant on the provision and use of power distribution facilities (hereinafter “instant agreement”), and install Internet communication lines (hereinafter “instant communication lines”) in the instant interference poles.

C. From around 2012, the Plaintiff had been engaged in the instant road construction project (hereinafter referred to as the “road construction project”). Since 2012, the Plaintiff’s access to the Section 2, the Gun line of the Section 31-2 (No. 31-2 line) was incorporated into the instant road construction project zone, and the instant obstacle poles installed in the said access line and the instant communications line were required to move to the instant road.

D. On December 28, 2015 and January 14, 2016, the Plaintiff requested the telecommunications company for the relocation of the instant communications line, and the telecommunications company did not comply with the request, and once the Plaintiff paid the telecommunications company the amount equivalent to the instant communications line’s dual equipment and equipment, and made a new decision with respect to the entity liable for the relocation of the instant communications line, the Plaintiff reserved to make a new decision with respect to the telecommunications company as follows. On August 17, 2017, the Plaintiff paid KRW 1,843,070 to the telecommunications company for the use of the instant communications line equipment and facilities:

A person shall be appointed.

E. The plaintiff paid the appraised value according to each appraisal result by the appraisal corporation and the J appraisal corporation for each of the above facilities, and the above appraisal report states that "the location where the communications company has a communications line is located" is stated as "the two written documents in Ulsan-gun, and seven parcels".

F. The location of communications lines confirmed to require relocation due to the instant road works is as follows by each telecommunications company:

A person shall be appointed.

G. The Ulsan Metropolitan City Ulsan-si, the management agency of the Dobong-do Park (No. 31line), inquiredd 14 lot numbers indicated in the attached Table as to whether the pre-use part of the annexed drawing interfered with the indication of the attached Table 31-2 line of the Gun, which included no parcel number included in the attached Table 31 line of the Gundo 31 line, and sent a reply to the same content as the inquiry reply.

H. Meanwhile, on February 4, 2013, the Plaintiff and the Defendant entered into a contract on construction cost burden (hereinafter “instant construction cost burden agreement”) with respect to the construction cost burden as follows with respect to the execution of the instant road works.

The name of the construction cost-sharing contract: The construction cost-sharing contract shall be prepared with a promise to implement the matters concerning the construction cost-sharing in the implementation of the construction project for the extension project between the two sections of the border highway (the two sections), as follows: 1. The contract shall be calculated as prescribed by the Electric Utility Act, the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and the relevant Acts and subordinate statutes and regulations and bylaws.However, the compensation for losses within the public service area may be calculated by A pursuant to Article 68 (Calculation of Compensation Amount) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and it may be presented to B.

(i) On February 5, 2013, the Defendant sent to the Plaintiff a public notice of the title, “Claim for Removal of Construction Costs of Power Distribution Line and Guidance for Business Affairs,” and sent a public notice of the title, “Claim for Additional Settlement of Construction Costs of Power Distribution Facilities,” and thereafter, on December 4, 2018, the Defendant claimed KRW 12,078,730 of the Additional Construction Costs, and the Plaintiff paid the interest-based construction cost requested to the Defendant. The details of calculation of customer charges, which are the documents attached thereto, include the following contents:

2013. 2. 5.자 공문 : 배전선로 이설공사비 청구 및 업무안내다. 총공사비 : ₩385,094,256(한전 부담 : ₩341,476,520, H도로공사 ₩43,617,736)라. 고객부담비 : ₩47,979,510(공급가 : ₩43,617,736, 세액 : ₩4,361,774)사. 부담금판정 내역첨부서류 : 고객부담금 산정내역서지장전주이설 공사비청구(frmHCU0030_01)고객부담주체근거 : 배전선로가 도로관리청에서 시행되는 공사로 (3장 4절) 도로부지는 당사, 도로외부지(사유지)는 사업시행자가 이설설공사비를 부담해야.

[Ground of recognition] Facts without dispute; Gap evidence Nos. 3 through 5, 8, 9, 11, 14; Eul evidence Nos. 1, 2, 7, and 8 (including each number; hereinafter the same shall apply); the result of the inquiry inquiry into the head of Ulsan Metropolitan City in Ulsan Metropolitan City; the purport of the whole pleadings;

2. The plaintiff's assertion

According to Article 90(2) of the former Road Act (amended by Act No. 14539, Jul. 18, 2017; hereinafter referred to as the “former Road Act”), a person who has been granted reduction or exemption from fees for the occupation and use of a road against the Plaintiff shall bear all the expenses for other construction works required due to the occupation and use of the Plaintiff when the Plaintiff implements road works. The Defendant, since concluding the instant agreement with communications companies, had communications companies install and operate the instant communications line to the owner of the instant obstacles. The Defendant falls under “a person who has been granted reduction or exemption from fees for the occupation and use of the instant communications line” under Article 90(2) of the former Road Act, and thus, is liable to bear the expenses for the relocation

Even if the Defendant does not constitute a person whose occupation and use fees are reduced or exempted under the above provision of the former Road Act, the communications line was installed in the attached Table Nos. 1, 6, and 6 (limited to the pre-use week No. 6, indicated in the attached Form No. 2), among the pre-use poles of the instant interference, and the Defendant bears the burden of relocation of the above two obstacles in accordance with the construction cost sharing agreement, so the Defendant shall bear the burden of the Defendant for the use of the facilities of the communications line installed in each interference state.

Therefore, the Defendant should return the amount equivalent to the cost of the relocation of the instant communications line borne by the Plaintiff to the Plaintiff as unjust enrichment.

3. Relevant provisions

A person who intends to occupy and use a road (including a road zone; hereafter the same shall apply in this Chapter) under Article 61 (Permission to Occupy and Use a Road) (1) of the former Road Act shall obtain permission from the competent road management authority. The same shall also apply when he/she intends to extend the permitted period or to alter the permitted matters (including new installation of a road, other than the permitted matters). (2) Necessary matters concerning the types of structures, goods, other facilities, the standards for permission to occupy and use the road by obtaining permission under paragraph (1), etc. shall be prescribed by Presidential Decree. Article 68 (Restrictions on Collection of Occupancy and Use Fees) may be reduced or exempted if the purpose of permission to occupy and use the road falls under any of the following subparagraphs:

(1) Except as otherwise expressly provided for in the permission to occupy and use a road to implement appurtenant works (including cases where the State or a local government occupies and uses a road after consulting with or obtaining approval from a road management authority under Article 107), all or part of the expenses incurred in relation to the road shall be borne by the person obligated to bear the expenses under this Act to the extent that such appurtenant works are necessary. (2), where a road management authority (including HRoad Corporation vicariously exercising the authority over a motorway under Article 112 and the manager of a privately financed road), the expenses incurred in relation to such appurtenant works shall be fully or partially borne by the road management authority (including cases where the State or a local government occupies and uses a road after obtaining permission from the road management authority under Article 107), the expenses incurred in occupation and use of the road; (2) the expenses incurred in installing electric power and telephone facilities; (3) the installation of electric power pipelines; (4) the installation of electric power supply facilities; (4) the installation of electric power and telephone facilities; (4) the installation of electric power stations; and (3) the installation of electric power stations;

4. Determination

A. Determination on the claim for the installation of telecommunications lines under the former Road Act

If road works are implemented as necessary for the opening of a road or for the management of a road, in principle, the cost of relocation of the road works is to be borne by the implementer of the road works in accordance with Article 90(1) of the former Road Act. However, a person who has been granted the reduction of or exemption from the occupation and use fee under Article 90(2) of the former Road Act is obligated to bear the relocation cost incurred due to the occupation and use of the existing road (see, e.g., Supreme Court Decision 9Da29183, Jul. 24, 2001). A person who had another person install communication lines using the electric poles installed on the existing road with the reduced or exempted occupation and use fee are also in the position of an occupant of the road, so that the person who has been granted the reduction of or exemption from the occupation fee under Article 90(2) of the former Road Act is also obligated to bear the cost of relocation of the telecommunication line required due to such occupation and use (see, e.g., Supreme Court Decision 2018Da2754827, Apr.

In light of the above legal principles, the following circumstances are acknowledged in light of the facts of recognition as seen earlier, the evidence as seen earlier, and the overall purport of the arguments, i.e., (i) the Japanese connection Department Nos. 2 and Dogdo (31-2 line) was incorporated into the road construction area of this case; and (ii) the head of Ulsan Metropolitan City, Ulsan Metropolitan City did not have any lot number of 14 obstacles in the attached Table No. 31 line as a result of inquiring about the above 14 obstacles, and there was no lot number included in the Gun road No. 31 line. The permission to occupy and use the road as to the above 14 weeks was not granted to the Defendant. The issue of reduction or exemption of road occupation and use fees was sent to the Defendant, and (iii) the Plaintiff’s claim for reduction or exemption of road usage fees on the two roads of Ulsan Metropolitan City, Ulsan-gun-gun, Seoul Special Metropolitan City, which is the accurate lot number of obstacles installed in the instant communications line, and there was no further evidence to acknowledge that the Plaintiff’s claim for reduction or exemption.

B. Determination on the claim for the use of communications line equipment based on the instant construction cost-sharing agreement

In full view of the aforementioned facts, in light of the aforementioned evidence and the purport of the entire pleadings, the evidence alone presented by the Plaintiff is insufficient to acknowledge that the Defendant is liable to pay the relocation cost of the instant communications line pursuant to the instant construction cost-sharing agreement, and that the amount of the Plaintiff’s assertion is the dual equipment of the instant communications line, and there is no other evidence to prove otherwise. Therefore, the Plaintiff’s claim seeking return of the relocation cost already paid to the Defendant as unjust enrichment on the premise that the Defendant is liable to pay the relocation cost of the instant communications line.

① The gist of the Plaintiff’s assertion was that the communications line installed by the telecommunications company was set up on the electric poles No. 1 in the column No. 6 (hereinafter referred to as “the electric poles No. 1”) and the electric poles No. 6 in the column No. 6 (hereinafter referred to as “the electric poles No. 6”). However, the Defendant had to pay the respective snow-based relocation costs on the electric poles No. 1 and No. 6, so the use of the communications line installed in each of the above obstacles ought to be borne by the Defendant, the specific arguments are as follows.

On the other hand, the defendant is obliged to bear the above 27-27,00-94 lot numbers of the two documents in Ulsan-gun, Ulsan-gun, U.S., U.S., U.S., which are 1274-75,000 and 1274-75 in the two documents in U.S., U.S., U.S., U.S., which are 27-4.4. However, the correct lot number of the obstruction per one shall be 1, U.S., U.S., P., U.S., U., U.S., U.S., U., U.S., U.S., U., U.S., U., U.S., U.S., U., U.S., U., U.S., U., U.S., U., U.S., U.A., U., U.S., U.A., U.D., U., U., U.

However, only the descriptions and images of Gap evidence 13, Nos. 14, and Eul evidence 6 are located at 1274-75's 'Yeng-gun 1274-94', where the lot number is in fact located at 'Yeng-gun 1274-94', and the attached table is 'Yeng-gun 1274-94', where the lot number is in fact at 'Yan-gun-gun 27-4', and the telecommunication line content of the telecommunications company's 's 'Yeng-gun-gun 18-9', where the lot number is in fact located at 'Yju-gun 27-8', and there is no other evidence to acknowledge it.

Article 1 of the instant Construction Costs Liability Agreement provides that the construction cost incurred from the execution of the instant road works shall be calculated according to the Electric Utility Act, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the relevant statutes, and the defendant's regulations and regulations. Furthermore, in the official text of February 5, 2013, sent by the defendant to the plaintiff when claiming for the installation cost of power distribution line, the construction cost shall be imposed on the plaintiff and the defendant, and the defendant, the former owner of the road under the Road Act shall be borne by the plaintiff and the defendant, respectively. In full view of the content of calculating customer charges attached to the above official letter, the road site shall be implemented by the road management authority in relation to the standards for calculating the construction cost. In full view of the fact that the road site is stated that the road owner installed on the road under the former Road Act bears the relocation cost, and that the plaintiff and the defendant shall bear the relocation cost, which are not so, an agreement is concluded that the plaintiff bears the previous construction cost.

However, according to the attached drawing as seen earlier, although the two obstacles suffered by the Plaintiff were located in the unit of access to Dodo 31 (No. 1 and No. 6), all the two obstacles are not included in the lot number protocol set forth in Gundo 31 and the Defendant obtained permission to occupy and use the road in relation to the two obstacles, the two obstacles shall not be deemed to fall under the front line installed on the road set forth in the former Road Act. Thus, even in the construction cost-sharing agreement of this case, even in the case of the two different lot numbers claimed by the Plaintiff, there is no obligation to pay the above two obstacles to the Defendant (the same is different in the case of the two different lot numbers claimed by the Plaintiff as accurate lot number), and in addition to the circumstances set forth in the above paragraph (1) of this case, it is unclear whether the Defendant was responsible for the expenses for the relocation of each obstacle set forth in the above 1 and 6, and even if the Defendant was liable for the two obstacles due to any circumstance, it cannot be concluded that the two obstacles are naturally attributable to the telecommunication line installed.

③ Even if the above two obstacles were to be installed on the road under the former Road Act as alleged by the Plaintiff, the instant construction cost-sharing agreement constitutes mutual agreement on the main body of the former construction cost. Unless otherwise expressly provided, it is difficult to interpret that the agreement includes an agreement on the main body of the installation of the telecommunications line in the said agreement, as a matter of course, the main body of the cost of the relocation of the telecommunications line is to be determined in accordance with the relevant Acts and subordinate statutes. If so, the Plaintiff’s burden of the cost of the relocation of the telecommunications line is a matter to be determined in accordance with the relevant Acts and subordinate statutes, and Quju Co., Ltd.’s demand for the relocation of the public road (No. 10) sent to the Defendant on November 5, 2012, the cost of the installation of the telecommunications line is deemed to hinder the Defendant’s burden of the installation of the two main body’s installation on the road under the proviso of Article 77(1) of the Road Act, even if the Plaintiff did not bear any other burden on the Defendant on the aforementioned two main body’s installation.

5. Conclusion

Therefore, the plaintiff's claim is without merit, and it is so decided as per Disposition.

Judges

The presiding judge, judges, Ginju

Judges Cho Jae-soo

On the present date of judge

Note tin

1) An amount calculated by subtracting 1,843,070 won from total 241,30,000 won for refund of Lplus Co., Ltd.

2) Ulsan-si, Ulsan-gun, the Plaintiff claimed that the instant communications line was the accurate lot number of the interference with the view to the installation of the telecommunication line, and "Sulsan-ri, 1274-94" and "Sulsan-ri, Pul

The phrase 27-8 of U.S. documents in U.S.-gun also does not include the Gun-Do 31's lot number protocol.

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