The period for raising an objection (=180 days from the date of disposition) where a road management authority issues a notice of collection of unjust enrichment equivalent to road occupation and use fees and fails to notify the period for raising an objection.

Even if the Local Autonomy Act stipulating the collection of unjust enrichment equivalent to road occupation and use fees and the procedure for raising an objection set a shorter period than the period stipulated in Article 18(3) of the Administrative Appeals Act, unless otherwise stipulated in Article 42(1) of the same Act, if the Defendant, who is a road management authority, did not inform the Plaintiffs of the period of submission, etc. in issuing a notice of collection of unjust enrichment equivalent to the road occupation and use fees of this case, the Plaintiffs can submit an objection within 180 days from the date of the disposition of collection notice pursuant to Article 18(6) and (3) of the Administrative Appeals Act without referring to the period of raising an objection under the Local Autonomy Act.

Article 80-2 of the Road Act, Article 130 of the Local Autonomy Act (amended by Act No. 4004 of April 6, 198), Article 18(3), 18(6), 42(1), and 43 of the Administrative Appeals Act

Busan Traffic Co., Ltd. and 5 others, Counsel for the plaintiff-appellant-appellee

Jinju Market

Daegu High Court Decision 87Gu161 delivered on September 20, 1989

The judgment below is reversed, and the case is remanded to the Daegu High Court.

We examine the Plaintiffs’ grounds of appeal.

1. According to the reasoning of the judgment below, the court below decided that the collection of unjust enrichment from a person who occupied and used a road without permission should be based on the method of collecting road occupation and use fees under Articles 43 and 35 (2) of the Road Act, and pursuant to Article 130 (3) through (5) of the Local Autonomy Act (amended by Act No. 4004 of Apr. 6, 198), if a person subject to the disposition of imposition of occupation and use fees equivalent to road usage fees is found to be illegal or erroneous, he shall raise an objection to the head of the local government who imposed the disposition within 10 days from the date of receipt of the notice, and if the head of the local government is dissatisfied with the disposition of the head of the local government, he may bring an action before the court. Thus, in order to bring an administrative suit for the amount equivalent to unjust enrichment against a person without permission, the court below did not go through legitimate procedures for imposing unjust enrichment under Article 80-2 of the Local Autonomy Act, and it did not go through the procedure of this case.

2. However, Article 43 of the Administrative Appeals Act provides that matters not provided for in other Acts concerning administrative appeals shall be governed by the provisions of this Act. Meanwhile, Article 42(1) of the same Act provides that where an administrative agency makes a disposition in writing, it shall notify the other party of whether an administrative appeal can be filed with respect to the disposition, the ruling authority in the case of filing a lawsuit, the transit procedure and the time limit for filing a petition. Thus, in cases where an administrative agency takes an administrative disposition in writing, unless otherwise provided for in other Acts, the other party is obliged to notify the other party of the provisional appeal, the ruling authority, the transit procedure

However, according to the provision of Article 18 (6) of the same Act, when an administrative agency fails to notify the period of request for a trial, the parties can file a request for a trial within 180 days from the date of the disposition, i.e., the date of the disposition. Thus, even if other Acts set the period of request for an objection to the disposition or a request for an administrative appeal such as an application for adjudication, etc., is shorter than the period prescribed in paragraph (3) above, if the administrative agency fails to notify the period of request for an administrative appeal at the time of the disposition,

The collection of unjust enrichment on the road occupation and use fees of this case shall be based on the example of collecting road occupation and use fees, and a person who asserts that the collection of usage fees such as road occupation and use fees of this case is unlawful shall raise an objection to the chairperson of the local government within 10 days from the date of receipt of the notification. However, the Local Autonomy Act which provides the above collection and objection procedure does not provide for the duty of disclosure under Article 42(1) of the above Administrative Appeals Act. Thus, in issuing a notice of collection of unjust enrichment equivalent to the above road occupation and use fees of this case, the defendant cannot find any data that is recognized as having notified the plaintiffs of the obligation to inform about the period of submission, etc. under Article 42(1) of the above Administrative Appeals Act.

If the defendant did not inform the plaintiffs of the period for raising an objection, the plaintiffs can submit an objection within 180 days from the date of the disposition of collection notice pursuant to the provisions of Article 18(6) and (3) of the Administrative Appeals Act. Thus, the court below should have examined the objection.

Therefore, the judgment of the court below is reversed and remanded as it is so decided as per Disposition by the assent of all participating Justices on the bench, on the ground that there is an error of law affecting the conclusion of the judgment due to a misunderstanding of legal principles

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)