(a) Form occupying roads by the State or local governments;

(b) Whether the provisions concerning roads, such as subparagraph 9 of attached Table 2 of Article 9 of the Enforcement Decree of the Local Autonomy Act and the attached Table of Article 5 (1) of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority, apply to roads, the width of which is between 12 and 20 meters, and

(c) Whether a road actually occupied by the Special Metropolitan City is naturally transferred from the Special Metropolitan City to an autonomous Gu from the enforcement date of the Local Autonomy Act;

(a) The form in which the State or a local government occupies roads may be divided into cases where it actually occupies existing roads by constructing roads as a road management agency under the Road Act, etc. and cases where it occupies roads as a person who actually controls roads;

B. Article 9 subparag. 9 of the Enforcement Decree of the Local Autonomy Act, which is a road of more than 12 meters (not less than 12m wide) and is prescribed by the Ordinance of the Special Metropolitan City, shall not be handled by autonomous Gus, taking into account the width of the road and the importance of the route, and shall be handled by the Special Metropolitan City. Article 5(1) of the Seoul Special Metropolitan City Ordinance on Administrative Delegation refers to the construction of a road, the width of which is less than 20 meters, with the delegated affairs to the head of the Special Metropolitan City Mayor, which refers to the construction of a road and the installation of appurtenances. All of the provisions

C. If the Special Metropolitan City provides as a passage to the general public by performing the asphalt packing work on the land when only 12 meters of urban planning facilities (road) are determined and cadastral approval with respect to the land under the Urban Planning Act, it is merely a fact that the Special Metropolitan City actually occupies the road, and thus, it should not be viewed that the existence or absence of the Special Metropolitan City Ordinance on the Maintenance and Management of the Special Metropolitan City and Autonomous Gu concerning the mid- 12 meters wide, such as the division of duties of the Special Metropolitan City and Autonomous Gu concerning the mid- 12 meters wide, has to be considered to have been transferred as a matter of course from the Special Metropolitan City to the autonomous Gu under Article 5

(a)Article 192(a) of the Civil Code; Article 741(b) of the Civil Code; attached Table 2 of Article 9 of the Enforcement Decree of the Local Autonomy Act; Article 5(1) of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority; Article 5(1) of the Local Autonomy Act;

A. Supreme Court Decision 91Da35649 delivered on October 27, 1992 (Gong1992, 3242). Supreme Court Decision 92Da45292 delivered on February 26, 1993 (Gong1993Sang, 1083) B. Supreme Court Decision 92Da50454 delivered on May 25, 1993 (Gong1993Ha, 1846)

Attorney Yoon-young et al., Counsel for the defendant-appellant

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 93Na48818 delivered on June 8, 1994

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below recognized the fact that the defendant provided the land of this case in the judgment of the court below located in the Nowon-gu Seoul Metropolitan Government on the ground of 12 meters wide urban planning facilities (road) and cadastral approval under the Urban Planning Act, and provided it as the passage of the general public under Article 2 of the Local Autonomy Act (Act No. 4004) which was completely revised on April 6, 198 and enforced on May 1 of the same year after the non-party became a separate local government from the defendant, that the non-party is to maintain and manage the above road falling under the middle street (ro) of attached Table 2.9 of the Enforcement Decree of the Local Autonomy Act after becoming a separate local government. Thus, the court below held that from May 1 of the same year, which was the enforcement date of the amended Local Autonomy Act, the non-party was occupied by the non-party in Dongjak-gu, which was not the defendant.

However, the form of occupying a road by the State or a local government is divided into cases where the existing road is actually occupied as a road management agency by constructing a road under the Road Act, etc., and where the road is actually occupied as a person in charge of the actual control of the road. Considering the road width and importance of the route as prescribed by the Special Metropolitan City Ordinance, the maintenance and management of the road shall not be handled by autonomous Gu, and the attached Table of Article 5 (1) of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (Evidence 7) provides that the construction of a road of less than 20 meters wide as the delegated affairs of the head of the Si is not a provision concerning the road that occupies as a road management agency in accordance with the related Acts and subordinate statutes, and it is not a provision concerning the road that actually occupies as a person in charge of the actual control of the road (see Supreme Court Decision 92Da50454 delivered on May 25, 1993). Thus, if the defendant's occupation of the road in this case is recognized by the court below, it shall be deemed that the defendant actually occupies the above Ordinance.

Nevertheless, the court below rejected the Seoul Metropolitan Government Ordinance as being unable to believe the result of fact-finding on the head of Dongjak-gu Office of the first instance that the Seoul Metropolitan Government Ordinance designated the above road as the Special Metropolitan City management road, on the premise that the above provisions of the Enforcement Decree of the Local Autonomy Act or the Ordinance concerning the division of administrative authority between the Seoul Metropolitan Government and autonomous Gu apply to the roads that actually occupy as the owner of possession other than the roads occupied by the Seoul Metropolitan City or autonomous Gu road management authority, and that the non-party, instead of the defendant, occupied the above roads from the date of enforcement of the amended Local Autonomy Act, because there is no provision prescribed by the defendant to maintain and manage it, was not distinguished from the occupation as the road management authority, or there is a misunderstanding of the legal principles as to the scope of application of the above provisions under the Enforcement Decree of the Local Autonomy Act or the Seoul Metropolitan Government Ordinance on the Delegation of Administrative Authority. However, the conclusion that the possession of the above roads is naturally transferred from the date of enforcement of the Local Autonomy Act to the non-party, and this error ultimately

In addition, we cannot accept the above erroneous premise that the judgment of the court below is erroneous in the misapprehension of the rules of evidence or in the misapprehension of the legal principles.

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 Park Jong-ho (Presiding Justice)