Plaintiff 1 and five others (Law Firm et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Sejong, Attorney Kim Jong-soo, Counsel for defendant-appellant)

The Love Association of Korea Egyptians (Law Firm LLC et al., Counsel for the defendant-appellant)

October 21, 2016

Seoul Administrative Court Decision 2012Guhap28797 decided July 9, 2013

Seoul High Court Decision 2013Nu21030 Decided May 15, 2014

Supreme Court Decision 2014Du8490 Decided May 27, 2016

1. The Defendant’s disposition of permission to occupy and use the road against the Intervenor on April 9, 2010 is revoked.

2. The plaintiffs' remaining claims are all dismissed.

3. The costs of the lawsuit, including the costs incurred by the supplementary participation, are assessed against the Plaintiffs, and the remainder is assessed against the Defendant and the Intervenor, respectively.

1. The defendant around April 9, 2010 confirmed that the permission to occupy and use the road granted to the Intervenor joining the Defendant (hereinafter “the Intervenor”) on April 9, 201 is null and void. It is preliminaryly stated in paragraph (1) of this Article.

2. With regard to the permission of occupation and use of the road mentioned in paragraph (1), the defendant shall file a lawsuit against the public officials of Seocho-gu Seoul Metropolitan Government Office and the intervenors involved in the above disposition, including Nonparty 1 and Nonparty 2.

1. Details of the disposition;

A. On June 1, 2009, an intervenor purchased 6,861.2 square meters of land B in the Seoul Seocho-gu Special Planning Zone (△△△△△△) from among the land located within the Seoul Seocho-gu Special Planning Zone, which was designated as a district unit planning zone as of June 1, 2009 for the construction of a church building. On February 4, 2010, the Seoul Special Metropolitan City Mayor decided and publicly announced a plan for the alteration of ○○ (△△△△△) district unit II in the said land according to the Intervenor’s proposal for the alteration of the district unit planning plan.

B. In the course of promoting the construction of a church building in a special planning zone II as above, the intervenor constructed a passage to enter the underground parking lot on the ground of the Seocho-gu Seoul Metropolitan Government, the national map owned by Seocho-gu, Seoul Metropolitan Government, as the roads along which are linked to the site of the above church building are set up as a section prohibiting the entry of vehicles according to the above district unit alteration plan, and applied for permission to occupy and use the above part of the underground road to the Defendant on March 3, 2010 for the purpose of using it as a part of the distribution facility constructed in the underground space of the above building site.

C. Accordingly, on April 9, 2010, the Defendant issued a permit to occupy and use the road (hereinafter “instant permit to occupy and use the road”) for the Intervenor’s occupation and use from April 9, 2010 to December 31, 2019 on the ground of the road of 12 meters in total width among the total width of 12 meters, which is the sum of four meters in width to be donated to the Defendant by the Intervenor in accordance with the district unit plan, among the new church buildings, by attaching an additional pipe to contribute the area of 325 square meters on the south underground to a childcare center. The main contents are as follows.

1. Place of occupation and use: Seocho-gu Seoul Metropolitan Government (Road 2 omitted);

2. Occupancy area: 1,077 square meters;

3. Purpose of occupation and use: Underground rooms.

5. Where the occupancy and use period expires or the permission for disuse or use is revoked, the road shall be restored at the expense of the person who has obtained permission, and the indemnity shall be paid until it is restored: Provided, That this shall not apply where it is impossible or inappropriate to restore it;

6. After the period of occupation and use expires, it shall be restored to the original state at the expense of the applicant.

11. A licensed person shall be fully responsible for any civil or criminal liability arising in connection with the occupation and use of a road.

D. After the permission to occupy and use the road of this case was granted to the intervenor, the intervenor installed the facilities such as the main (e.g., video exhibition room, school building, sexual substitute room, broadcasting room, etc.) from the first to the fifth underground level underground in the underground of the new church building of this case including the underground part of the road of this case, and the parking lot, mechanical room, warehouse, etc. from the sixth to the eight underground floors underground (hereinafter the above facilities were combined from the eighth underground to the eight underground floor), and the defendant received the occupancy charges (138,614,00 won: 184,819,000 won, 2012: 235,240,000 won, 277,5083,000 won, 204, 2016, 3014, 2016, 2064, 2006, 306, 2016, 3016

E. The Plaintiffs filed a lawsuit seeking revocation of the disposition of permission to occupy and use a road at this court 2012-Gu 28797, and filed a lawsuit seeking revocation of the said disposition in addition to each of the claims stated in the above purport of the claim, but received the judgment dismissed on July 9, 2013. Although they appealed against the above judgment, Seoul High Court 2013Nu21030, May 15, 2014 (Seoul High Court 2014Du8490). Accordingly, the Plaintiffs filed an appeal on May 27, 2016 on the grounds that the Supreme Court dismissed the appeal on the ground that the Plaintiffs did not contain any specific grounds for appeal as to this part in the petition for appeal or the appellate brief, and that the remaining part is reversed and reversed and remanded to this court. Accordingly, the judgment becomes final and conclusive by the Supreme Court, and the scope of the adjudication on the said claim is limited to the scope of this judgment.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 4, 5, Gap evidence 7-1, 2, Gap evidence 8-1 through 3, Gap evidence 9-1, 2, Gap evidence 14, 22, Eul evidence 11, and the purport of the whole pleadings

2. The plaintiffs' assertion

A. The Plaintiffs are not included in the concept of " underground room" subject to the permission to occupy and use the road, but the new public store is not possible later due to the permission to occupy and use the road of this case, and the permission to occupy and use the road of this case is to secure facilities for private use only. Therefore, it is obviously contrary to the principle of proportionality and the principle of equality. The Plaintiffs are in violation of the principle of separation of religion and religion and the principle of equality. The Plaintiffs seek revocation of the permission to occupy and use the road of this case, since their primary defects

B. In relation to the permission to occupy and use the road of this case, the Defendant is obligated to file a lawsuit against the public officials of Seocho-gu Seoul Metropolitan Government Office and the Intervenor who participated in the above disposition, including Nonparty 1 and Nonparty 2.

3. Determination

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination as to the claim for confirmation of invalidity of the permission to occupy and use the road of this case (main claim)

In order for an administrative disposition to become void as a matter of course, it is insufficient to say that there is an illegal cause, and the defect is a serious violation of the important part of the law and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decisions 94Nu4615, Jul. 11, 1995; 2001Du4566, Dec. 10, 2002).

In addition, even if the defect existing in an administrative disposition is serious, if it is not objectively clear in its appearance, the administrative disposition cannot be deemed null and void. Thus, in the case where an administrative disposition was taken by applying the provisions of a law to certain legal relations or factual relations, the legal principles clearly stated that the provisions of the law cannot be applied to them, and despite the absence of room for dispute over the interpretation thereof, if the administrative disposition was taken by applying the above provisions, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles that the provisions of the law cannot be applied to the legal relations or factual relations are not clearly revealed, it is merely a mistake of the fact that the administrative disposition was taken by erroneous interpretation and thus, it shall not be deemed clear that the defect is evident. In addition, if an administrative disposition was taken against a person who has no legal relations or factual relations subject to the administrative disposition, it shall be deemed that there is a significant and obvious defect, but if there is objective circumstance to believe that the legal relations or factual relations which are not subject to the administrative disposition, it should be examined, it should be clarified even if it can be clarified (see).

In the instant case, the Defendant: (a) recognized that the instant road is not in danger of the safety of road structure and traffic; and (b) granted the instant permission to occupy and use the road to the intervenors; and (c) as seen below, even if the said permission was unlawful, it can be found that the defects can be verified only when the legal relation or facts are accurately examined; and therefore, (b) it cannot be deemed that the defects are apparent, and therefore, it cannot be deemed that the Plaintiffs’ primary assertion is without merit.

C. Determination as to the claim for revocation of permission to occupy and use the instant case (preliminary claim)

1) First, we examine whether the instant towing distribution, etc. constitutes “ underground room” for the purpose of occupying and using the instant road.

According to Article 28(5)5 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sep. 17, 2010; hereinafter “former Enforcement Decree of the Road Act”), “the types of structures, objects, and other facilities that can be permitted to occupy and use a road” include “the underground shopping, basement, passage, overpasses, and others similar thereto.”

According to Article 28(5) of the former Enforcement Decree of the Road Act, it is difficult to view that the concept of “the above section 2” and “the above section 5-2 of the Enforcement Decree of the Building Act are similar to the above section 1-2 of the Building Act, because it is acknowledged that the meaning of “the underground room” stipulated in Article 28(5)5 of the Enforcement Decree of the Building Act refers to the similarity of physical structure, which does not cause any harm to road safety and traffic. The instant towing is a space partitioned with an underground wall, and it can be seen as similar to the underground room. ② It is clearly defined in Article 28(5)5 of the former Enforcement Decree of the Road Act that the concept of “the underground room” and “the underground room installed in the above section 2-5-2 of the Building Act is distinguishable from that of the stores installed in the underground, and thus, it is difficult to view that the above section 2-2 of the Enforcement Decree of the Building Act is not subject to permission to occupy and use the above section 1-2 of the Building Act.

2) Whether the discretion is deviates or abused

Article 38(1) of the former Road Act (amended by Act No. 12248, Jan. 14, 2014; hereinafter “former Road Act”) refers to the so-called special use of a specific part of a road for specific purposes, separately from such general use, for roads used for the traffic of the general public. Such permission to occupy and use a road is a discretionary act for which a public property manager determines permission in consideration of the applicant’s eligibility, purpose of use, influence on public interest, etc. The judicial review of such discretionary act is an act of establishing a specific specific person’s right of use of public property. In light of the possibility of a public interest judgment based on the re-fluence of an administrative agency, the court should determine whether there was an error in the interpretation of statutes or legal principles, misunderstanding of facts, or violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decisions 9Du1305, Feb. 9, 201; 2005Du305375, May 37, 2001).

According to the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter the same), if conditions are attached to the donation, it shall not be accepted (Article 7(2)). Property for which private rights have been established shall not be acquired as public property before the said private rights have been extinguished (Article 8). In particular, no private right shall be established unless special circumstances exist (Article 19(1)). In principle, a person other than the head of the relevant local government is unable to construct permanent facilities, such as a building, etc. on public property (Article 13), insofar as there are no difficulties in the current use and use of the relevant public property, construction of permanent facilities, such as installation of structures, etc. on the public property on the surface and underground or underground surface, should be sufficiently considered in light of the purport of the former Special Act on the Management of Public Property and Commodity, and thus, it shall be deemed that the pertinent provision on the road management and use permit should be established within the meaning of Article 1006 of the former Special Act.

According to Article 28(5)1 through 5 and 8 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 1-2), the period of occupation and use of a road under Article 28(5)1 through 8 shall not exceed ten years, and the period of occupation and use of other objects shall not exceed three years. The occupancy and use period of not more than ten years is most permanent facilities, such as electric poles, electric wires, water pipes, sewerage pipes, etc., or public telephone, gas stations, parking lots, parking lots, terminals, underground shopping districts, etc., which are offered for public use. The occupancy and use period of not more than three years falls under those of private facilities, such as signboards, signs, construction materials, etc., which can be easily restored to their original state or original state. In cases where structures, goods, or other facilities, which can be permitted to occupy and use a road fall under permanent facilities, the occupancy and use period of the road is not more than ten years due to the change of the purpose or use of permanent facilities in the future.

In light of the purpose, text, and structure of the former Road Act and the statutes related to public property and commodity management, even if a road management authority’s discretionary action is granted, if the use of permanent facilities is provided only to a specific private person or organization, the same effect as the creation of a de facto permanent private right to a road, which is property for public use, has the same effect as granting a private person or organization an obvious preferential treatment to such private person or organization as property for public use. As such, when granting permission to occupy and use a road for the purpose of installation of permanent facilities, a local government, which is a road management authority, should decide whether to grant such permission by fully considering whether the use or installation of permanent facilities complies with the overall interest of the relevant local government, rather than giving

Considering the overall purport of Gap evidence 1, Gap evidence 7-1, Eul evidence 7-2, Eul evidence 8-1 through 3, Eul evidence 5-1 through 5, Eul evidence 6-1 through 8, and Eul evidence 6-1 through 8, the whole purport of the arguments is as follows: (1) The Seocho-gu Office's construction department asked the head of Seocho-gu office about whether it is possible to grant the intervenor's permission to occupy and use the road in Seocho-gu road management division on February 8, 2010, and the Seocho-gu disaster management division asked the Seocho-gu disaster control division and it on February 18, 2010. On February 25, 2010, the disaster size of Seocho-gu and the road of this case asked the head of Seocho-gu 20, public sewage facilities (D=600 square meters, 168 meters, 168 meters, 15 rainwater, etc.) managed by Seocho-gu, and it is necessary to occupy and use the road of this case.

6. The above facts and arguments are as follows. ① The Intervenor installed the above facilities such as the church site from the first to the fifth underground floor of the church site, including the instant underground section, such as video exhibition room, e.g., broadcasting room, and g., parking lot, machine room, warehouse, and entrance marb, which are underground from the sixth to the eight underground floors, and the above underground installation of underground structures is not easy to reinstate, and the maintenance, management, and safety of the above facilities are likely to be neglected or neglected due to changes in circumstances such as the ownership change of the relevant facilities. As such, the Intervenor’s right to occupy and use the road can not be seen as being used by the Intervenor at any time because it is difficult for the Intervenor to use the above facilities as the main purpose of the permission to occupy and use the road for the purpose of using the above public structures without any need for public or public use of the above facilities. However, it is difficult for the Intervenor to claim that it is difficult for the Intervenor to use the above facilities as the main purpose of the permission to occupy and use the road for public use.

D. Determination as to the claim for damages

1) Pursuant to Article 17(2)4 of the Local Autonomy Act, a resident may file a lawsuit demanding the head of a local government to exercise the right to claim damages or the right to claim restitution of unjust enrichment against the pertinent public official who committed an illegal act, such as expenditure of public funds, or against the other party related to the pertinent act. In the event of such lawsuit, the Local Autonomy Act does not have any special provision as to the right to claim restitution of unjust enrichment against the other party related to the pertinent act and the requirements for establishing the right to claim restitution of unjust enrichment, and thus, the establishment thereof shall be determined pursuant to the statutes governing each of the above rights, such as the Civil Act. The plaintiffs must prove

2) When interpreting the main text and proviso of Article 29(1) of the Constitution and Article 2 of the State Compensation Act in harmony with the legislative intent thereof, in cases where a public official causes damage to another person by a tort during the performance of his/her duties, not only the State or a local government is liable to compensate for damage caused by a tort, but also a public official is liable to compensate for damage caused by a tort if he/she is a public official's personal negligence or gross negligence. In this context, a public official's gross negligence is not liable to compensate for damage caused by a tort if he/she is merely a public official's personal negligence. Even if he/she did not pay considerable attention to the extent that the public official is ordinarily required, if he/she could have easily predicted the result of illegal and harmful acts, it means a situation in which the public official lacks considerable attention similar to the intention (see Supreme Court Decision 2003Da

In the instant case, it is difficult to view that public officials of Seocho-gu Seoul Metropolitan Government, who participated in the instant disposition, including Nonparty 1 and Nonparty 2, lack of considerable attention to intention, and there is no other evidence to acknowledge that there was gross negligence on the part of the above public officials.

3) In addition, the Plaintiffs knew or could have known from the beginning the beginning that the Intervenor’s occupancy and use of the instant underground portion was illegal in the course of applying for permission to occupy and use the road of this case, and claimed that the Intervenor should bear tort liability on the ground that the Intervenor conspireds with the public officials in charge by actively inducing public officials in charge of Seocho-gu office or exercising pressure on them during the process of granting permission to occupy and use the road of this case. However, the evidence submitted by the Plaintiffs, including the aforementioned facts, is insufficient to recognize the facts of the Intervenor recruited with the public officials in charge by actively inducing public officials or using unlawful means

4) Therefore, the plaintiffs' above assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' preliminary claim of this case is justified, and all of the remaining claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Byung-soo (Presiding Judge) and Kim Young-young