[1] In a case where the costs of appurtenant works of road works can be borne by the person who caused the road works, whether the person who caused the road works can be borne with the costs of appurtenant works by applying the main sentence or proviso of Article 65 (1) of the former Road Act (negative)

[2] In a case where: (a) the Korea Land and Housing Corporation implemented road works within the necessary scope in order to solve traffic congestion in national highways which would be caused by the implementation of a housing site development project; (b) as the relocation of communications facilities buried as a result of obtaining permission for occupation and use was required; (c) the Korea Land and Housing Corporation has the Korea Land and Housing Corporation bear the expenses for relocation construction; and thereafter, (d) the Korea Land and Housing Corporation filed a lawsuit against the Company A seeking a return of unjust enrichment equivalent to the above appurtenant construction expenses, the case holding that the costs for relocation of communications facilities, which are appurtenant construction required due to the said road construction, may be borne by the Korea Land and Housing Corporation, which is the person who caused the said road construction, under Article 65(2) and Article 64 of the Road Act, cannot be charged with all of the costs for

[1] In light of the contents and nature of Article 64 and Article 65 of the former Road Act (amended by Act No. 7103 of Jan. 20, 2004), the purpose of legislation, etc., in a case where road works become necessary due to other construction works or other acts, and where construction works again become necessary due to such other construction works or for the execution of such road works, all or part of the expenses for appurtenant works under Articles 65(2) and 64 of the Road Act shall be borne by the person who is liable to bear the expenses for other construction or other acts, i.e., the person liable to bear the expenses for appurtenant works, within the scope of the burden, by applying the main sentence and proviso of Article 65(1) of the Road Act or the proviso of the Road Act.

[2] In a case where the Korea Land and Housing Corporation executes road works within the necessary scope in order to solve traffic congestion in national highways which will be caused by the implementation of a housing site development project, and as a result, the relocation of communications facilities buried as the company A obtained permission for occupancy and use was required, the Korea Land and Housing Corporation shall bear the expenses, and thereafter, the Korea Land and Housing Corporation shall bring a lawsuit against the company A seeking restitution of unjust enrichment equivalent to the expenses for the above appurtenant construction, the case holding that the above road works shall not be subject to the proviso of Article 65 (1) of the Road Act, since the benefits arising from the above road works shall mainly belong to the housing site development project, and the necessity of the above road works was realistic and specific, since it is reasonable to deem that the above road works were necessary solely due to the implementation of the housing site development project, the expenses for relocation of communications facilities, which are appurtenant construction required due to the above road works, may be borne wholly by the Korea Land and Housing Corporation, who is the person who caused the above road works, under Articles 65 (2) and 64 of the Road Act.

[1] Articles 64 (see current Article 76) and 65 (see current Article 77) of the former Road Act (Amended by Act No. 7103, Jan. 20, 2004); / [2] Articles 64 (see current Article 76) and 65 (see current Article 77) of the former Road Act (Amended by Act No. 7103, Jan. 2004)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Plaintiff 1 and 1 other (Law Firm Cheongn Law, Attorneys Choi dilution et al., Counsel for defendant-appellant)

Busan High Court Decision 2008Na19850 decided June 24, 2009

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In full view of the contents and nature of Articles 64 and 65 of the former Road Act (amended by Act No. 7103 of Jan. 20, 2004; hereinafter the “Road Act”), legislative intent, etc., in a case where road works become necessary due to other construction works or other acts, and another appurtenant works are required due to such road works or for the execution of such road works, all or part of the expenses on appurtenant works pursuant to Articles 65(2) and 64 of the Road Act shall be borne by the person who is liable to bear the expenses on appurtenant works or other acts, i.e., the person liable to bear the expenses on appurtenant works, within the scope of the burden, by applying the main sentence or proviso of Article 65(1) of the Road Act.

According to the facts duly established by the court below and the records, the Gyeongnam Do governor approved the development plan of the Housing Site Development Project (hereinafter "the project of this case") implemented by the plaintiff on September 29, 199, and attached a traffic impact assessment certificate at the time of application for the approval of the implementation plan to "as it is a traffic impact assessment project under the relevant Acts and subordinate statutes, it is necessary to attach a traffic impact assessment certificate to the construction plan," and to install additional tea lines in order to induce the securing of vision and smooth driving of vehicles running on the side of the national highway, and to make a consultation separately with the Busan Regional Land Management Office, which is the road management authority, by planning the road network in a way that combines the national highway with the national highway, in the traffic impact assessment report executed in accordance with the approval conditions, it is necessary to develop the road of this case with the road of this case 14 lines and 25 lines adjacent to the project of this case (hereinafter "the road of this case") and to improve the road of this case to the public road of this case 20.

In light of the above circumstances, the road works in this case were executed within the necessary scope in order to solve traffic congestion of the national highways of this case which will be entirely caused by the implementation of the project in this case, and benefits therefrom are mainly attributed to the project in this case. Also, under the situation where urban planning facilities were only determined on the national highways of this case and there was no urban planning facility project operator designation or implementation plan, the necessity of the road works in this case was realistic and specific, and even if there was no urban planning facilities decision on the national highways of this case, the road works in this case were inevitable due to the implementation of the project in this case.

Therefore, it is reasonable to deem that the instant road works solely incurred due to the execution of the instant road works. As such, the expenses for the relocation of the instant communications facilities, which are the appurtenant works required due to the instant road works, may be borne in full by the Plaintiff, who is the person who caused the instant road works, under Articles 65(2) and 64 of the Road Act, and thus, even if Defendant K has been granted a reduction of or exemption from the occupation fees for the installation of communications facilities under Article 44 subparag. 3 of the Road Act, the said appurtenant works cannot be charged to Defendant K, applying the proviso of Article 65(1) of the Road Act.

Therefore, the lower court’s rejection of the Plaintiff’s claim against Defendant KT seeking return of unjust enrichment equivalent to the above appurtenant construction cost under the premise that the person who bears the above appurtenant construction cost should be designated by applying the proviso of Article 65(1) of the Road Act is justifiable in conclusion. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

The Supreme Court Decision 99Da29183 delivered on the ground of appeal is inconsistent with this case and it is not appropriate to invoke the case.

2. Regarding ground of appeal No. 2

The allegation in the grounds of appeal that Article 36 of the Housing Site Development Promotion Act, which is applied mutatis mutandis pursuant to Article 14 of the Housing Site Development Promotion Act, is not applied to the construction works of main roads necessary for the housing site development project, with respect to the construction works of the main roads for which the plaintiff was implementing the construction works of this case, shall not be a legitimate ground of appeal.

3. As to the third ground for appeal

In light of relevant evidence and records, the decision of the court below is just in rejecting the plaintiff's assertion that the defendant Republic of Korea should bear the costs of reinforcement of military power lines according to the father at the time of granting permission to occupy and use a road or extension of the period of permission to occupy and use a road, and there is no error of law

In addition, the court below's rejection of the plaintiff's assertion that the defendant Republic of Korea has an obligation to pay construction costs according to the agreement with the plaintiff as it demanded the plaintiff to bear the construction costs as secured by the budget when it demanded the reinforcement work of the military power line as an official document which has undergone internal decision-making, and the plaintiff trusted this opinion was the reinforcement work of the military power line, is just in light of relevant evidence and records, and there is no error of law such as incomplete deliberation or misapprehension of legal principles as otherwise alleged in the ground of

4. Conclusion

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 Nung-hwan (Presiding Justice)