In a case where Article 41(2) of the former Road Act and Article 42(2) of the former Enforcement Decree of the Road Act have not been amended in line with the amendment of the Enforcement Decree of the former Road Act, and thus, the provisions of the above Ordinance are effective within the scope of the upper limit of fees for occupation and use in accordance with the calculation standards prescribed by the Enforcement Decree of the former Road Act, and the upper limit shall be applied to escape from the provisions of the above Ordinance.

Article 41(2) of the former Road Act (Amended by Act No. 10580, Apr. 12, 2011; see current Article 41(3)); Article 42(2) of the former Enforcement Decree of the Road Act (Amended by Presidential Decree No. 24205, Nov. 27, 2012);

Plaintiff

The head of Seodaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 2012Nu14608 decided January 16, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 41(2) of the former Road Act (amended by Act No. 11471, Jun. 1, 2012; hereinafter the same) provides that matters necessary for the collection of occupation and use fees, such as the standards for calculation of occupation and use fees to be collected from persons who occupy and use roads with permission from the road management agency shall be prescribed by Presidential Decree for national highways and by Municipal Ordinance of the local government to which the road management agency belongs within the extent prescribed by Presidential Decree for other roads. The provision on the standards for calculation of occupation and use fees of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sep. 17, 2010; hereinafter the same shall apply) provides that the usage and use fees of the road of this case, which is based on the premise of the disposition of this case, shall be prescribed by Presidential Decree within the scope of 20th of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 24205, Nov. 27, 2012; hereinafter the same shall apply).).

Meanwhile, the former Seodaemun-gu Seoul Metropolitan Government Ordinance on Permission to Occupy and Use and Collection of Occupancy Charges, etc. (amended by Ordinance No. 973, Nov. 7, 2012) that had been enforced during the occupation and use period of the road of this case shall be calculated from Article 41(2) of the former Road Act and Article 42(2) of the former Enforcement Decree of the Road Act to “the amount obtained by multiplying the occupation and use fees of the station, etc. by 0.025 by the land price” under Article 3 and [Attachment 1] of the former Road Act. The land price in this case shall be “the officially assessed land price under the Public Notice of Values and Appraisal of Real Estate Act of adjoining Land” (hereinafter “the provision in this case”). The provision in this case prescribed the standards for calculating the occupation and use fees of the road other than the national road within the scope prescribed by the former Enforcement Decree before the Enforcement Decree was amended on Sept. 17, 2010. Thus, the Enforcement Decree of the Road Act failed to comply with the above provisions during the upper period of the road.

Article 41(2) of the former Road Act provides that matters necessary for the collection of occupation and use fees, such as standards for calculation of occupation and use fees of national highways, shall be prescribed by Presidential Decree, and other roads shall be prescribed by municipal ordinances of local governments within the scope prescribed by Presidential Decree. The purport of such provision is to allow each local government to separately regulate occupation and use fees of roads which are not national highways according to the specific local circumstances, rather than uniformly regulating them throughout the country. In full view of such legislative intent and the language of “the scope prescribed by Presidential Decree” under Article 41(2) of the former Road Act, it is reasonable to deem that “the standards for calculation of occupation and use fees” under the former Enforcement Decree means the upper limit of occupation and use fees prescribed by municipal ordinances of local governments. Therefore, even if the provision of this case appears to be inconsistent with the provisions of the former Enforcement Decree, it shall not be deemed unlawful and invalid. Rather, the provision of this case is valid within the upper limit of occupation and use fees under the standards for calculation under the former Enforcement Decree, and it shall be deemed that the provision of this case is applied only to the road management agency.

In this regard, the court below is just and correct to determine that the disposition of this case is unlawful according to the legitimate interpretation of the provisions of the Municipal Ordinance of this case on the premise that the provision of this case is applied to the calculation of road occupation charges, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the statutes

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)