C. C. C. C. C. C. H. (Law Firm Identity et al., Counsel for the defendant-appellant)

Yangcheon-gu Seoul Metropolitan Government (Law Firm Lee & Lee LLC, Attorneys Park Jong-hun et al., Counsel for the defendant-appellant)

October 27, 2016

Seoul Southern District Court Decision 2014Da34243 Decided December 4, 2015

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 62,240,666 won with 5% interest per annum from July 5, 2014 to November 24, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 62,240,666 won with 5% interest per annum from May 29, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. The basic facts (except for the addition of the parts described in paragraph (g) below, are the same as the judgment of the court of first instance):

A. Status of the parties

1) The Plaintiff is a key telecommunications business operator under the Telecommunications Business Act that operates a composite cable broadcasting station business, cable broadcasting business, and super-high speed information and communications network business. The Plaintiff entered into a lease agreement with the Korea Electric Power Corporation (hereinafter “Korea Electric Power Corporation”), which is a Defendant’s administrative district, which is lawfully owned by the Defendant, on a new month, and installs a telecommunications line and cable line (hereinafter “instant telecommunications line”) and provides neighboring users with high speed Internet and cable broadcasting services.

2) The defendant is a road management authority that occupies a new month owned by Seoul Special Metropolitan City.

B. Promotion of the Defendant’s “Seoul Design Construction Corporation”

In order to design all the elements of the distance installed mainly for the function of the new month with the center of the Gu residents in order to walk, and to create the communication distance, the Defendant continued to run the Seoul-distance Design Construction Project from around 2008 to the new month. As part of the above construction, the part of the telecommunication line and cable line 620 meters (hereinafter “the road of this case”) from the new street to the end point of 111 of the old road during the new month (hereinafter “the road of this case”).

C. Conclusion of an agreement with the Defendant on the Korean War

On April 28, 2009, the Defendant entered into an agreement with respect to the intermediate construction of the instant land (hereinafter “instant agreement”) with the Korea War as follows:

Article 1 (Purpose of this Convention) of the table contained in the main text of this Convention provides for all matters concerning mutual cooperation when local governments and the Korea Electric Power Corporation carry out the undergroundization construction of power distribution lines to ensure efficient and smooth execution of construction works. Article 4 (Calculation of Construction Costs) of the same Convention provides that the construction cost for undergroundization of power distribution lines shall be calculated in accordance with the Telecommunications Business Act and the relevant Acts and subordinate statutes and the Korea Electric Power Corporation’s internal regulations, and the Defendant shall calculate the amount as prescribed by the proviso of Article 5 (Payment and Scope of Construction Costs). The Defendant shall pay the total construction cost (including construction cost, road excavation cost, road work cost, road restoration work cost, and design work cost) designed by the Korea Electric Power Corporation (100%) to the Defendant (10%) within 30 days from the date on which the charge calculated under paragraph (1) is claimed, and the Defendant shall not immediately pay the amount of the construction cost to the Defendant within 30 days prior to the settlement of the amount of the charges to be paid within 30 days prior to the settlement (30 days).

(d) Urging the head of Yangcheon-gu to implement the broadband Corporation against the plaintiff;

On July 2, 2009, the head of Yangcheon-gu sent to the Plaintiff a letter to the effect that the excavation permission is prohibited for five years after the completion of the undergroundization construction of this case, on the ground that the application for road excavation permission at the Gangseo branch of the Korea Electric Power Corporation is expected to start the construction, and that the construction will start, and that the excavation permission is prohibited for five years after the completion of the undergroundization construction of this case.

E. Execution of the Plaintiff’s underground transmission line-based construction and disbursement of the construction cost therefrom;

1) On November 20, 2009, the Plaintiff, based on the Defendant’s public notice, awarded a contract for construction cost of KRW 43,013,466 to New Zealand Co., Ltd. on November 20, 209, and thereafter, the Plaintiff paid KRW 43,013,466 to New Zealand Co., Ltd. on January 29, 201, upon completion of the said construction work.

2) 원고는 2009년 12월경 주식회사 굿네트웍스에 전송망 정합 및 철거공사를 공사대금 19,227,200원에 도급 주었고, 이후 주식회사 굿네트웍스가 위 공사를 완료하자 2010. 3. 19. 주식회사 굿네트웍스에 공사대금 19,227,200원을 지급하였다(이하 원고가 지출한 관로공사비 43,013,466원과 철거공사비 19,227,200원을 통틀어 이를 ‘이 사건 공사비’라 한다).

(f) Herb internal rules;

1) Of the guidelines for processing official duties of power distribution facilities (hereinafter “instant guidelines”), the part relating to the instant case is as follows.

A business operator who wishes to install and operate communications facilities and equipment using power distribution facilities and equipment included in the main sentence of Chapter 1, Chapter 3 (Provision Policies) (5) of the table contained in the main sentence, shall enter into an agreement with the Korea Electric Power Complex in advance. The provisions of Chapter 4, Article 3 (Terms and Conditions for Provision of Underground Facilities and Use of Power Distribution Facilities) shall be applied only when the reinforcement of underground power distribution facilities and equipment is necessary due to the installation of underground communications facilities and equipment due to the installation of underground communications facilities and equipment under Chapter 3 (Terms and Conditions for Provision of Underground Facilities and Equipment subject to Reinforcement) of Chapter 4, the provision of underground power distribution facilities and equipment may be provided only when the communications business operator bears the expenses. Any person who intends to install and operate communications facilities and equipment using power distribution facilities and equipment under Chapter 7, Article 1 (Agreement on Provision and Use of Power Distribution Facilities) shall enter into an agreement with

2) Of the agreement forms on the provision and use of power distribution facilities prior to Korea (hereinafter “instant agreement forms”), the parts relating to the instant case are as follows:

Article 20 (Standards for Underground Facilities) of Chapter 2 of the Table contained in the main sentence, in relation to matters concerning the specifications of vacant cables, the installation quantity of interior pipes for vacant cables, the installation of aerial cables in the premises of electricity, the installation of artificial cables in manle or pipelines, the installation of artificial cables in manle or conduits, the installation of electric cables in manle or conduits, the installation of telecommunications equipment in utility tunnels, etc. shall be in accordance with the Guidelines for Handling of Power Distribution Facilities. (Change of Official Facilities by Removal of Power Distribution Facilities) (1) In cases where the cause of electricity supply ceases to exist or the removal of power distribution facilities is required due to underground deterioration of processing facilities, etc., the owner of the official factory facilities shall remove the official factory facilities installed in the relevant power distribution facilities.

(g) the relevant provisions;

The relevant provisions of the Road Act and the Telecommunications Business Act shall be as shown in the attached Form.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 11, Eul evidence 2 to 6, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

1) The subject of the cost-sharing of the instant undergroundized construction

① All of the elements of the instant groundized construction works, which are promoted by the Defendant’s administrative needs, wanting to walk by integrating all the elements of the instant groundd construction works with the center of the Gu residents, shall be borne by the Defendant, who is the provider of undergroundized construction works and the beneficiary thereof pursuant to the main sentence of Article 51(3) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Telecommunications Business Act”). ② Of the instant groundized construction works, the undergroundized construction works do not themselves constitute road construction works, and the instant ground for the instant ground for the instant construction works to be reduced or exempted from the road construction works under the proviso of Article 7 of the former Road Act (amended by Act No. 10156, Mar. 22, 2010; hereinafter “former Road Act”). Accordingly, the Plaintiff’s construction works do not constitute “the instant ground for the instant road construction works” or “the instant construction works” under Article 7 of the former Road Act.

2) Absence of legal cause, etc.

In addition, the validity of the instant agreement concluded between the Defendant and the Defendant does not extend to the Plaintiff, not a party to the agreement, and there was no agreement between the Plaintiff and the Defendant on the cost-bearing for road excavation and packing restoration among the landization works of this case. Ultimately, in relation to the Defendant, the Plaintiff did not have any legal grounds for the payment of the cost of undergroundization construction of this case. Accordingly, the Defendant ought to return the landization construction cost of this case to the Plaintiff as unjust enrichment.

B. Summary of the defendant's assertion

1) The Plaintiff’s illegal occupancy of the instant road

Article 51(1) of the former Telecommunications Business Act applies to cases where a key telecommunications business operator installs telecommunications equipment and facilities in compliance with relevant provisions, such as the Telecommunications Business Act, in light of the purpose of legislation. However, the Plaintiff only installed telecommunications equipment and facilities, and entered into a lease contract with the Korea Electric Power Corporation, the owner of the electric power plant, and did not enter into an agreement on the installation of telecommunications equipment and facilities with the Defendant, the owner of the land, the Seoul Special Metropolitan City or the occupant, and did not obtain permission to occupy and use the land.

2) The subject of the cost-sharing of the instant undergroundized construction

① The Plaintiff’s road excavation and packing restoration work falls under the road construction work due to the other works stipulated in Article 76 of the former Road Act (hereinafter “instant communications line”). Since the above other works were caused by illegal occupation and use of the Plaintiff’s road, the Plaintiff is obliged to bear the expenses for road excavation and packing restoration work during the instant land-to-land-to-land-to-land-to-the-land-the-land-to-land-the-land-to-land-the-land-to-land-the-land-to-land-the-land-to-land-the-land-to-land-the-land-the-state-land-to-land-to-land-the-land-the-state-land-to-land-the-state-land-to-land-the-land-the-land-the-state-land-to-land-the-land-the-land-the-land-the-land-the-state-land-the-land-the-land-the-land-the-land-land-the-party-the-state-state-state-the-state-party-party-the-party-party-the-party-the-state.

3) Existence of legal cause, etc.

Upon entering into the instant agreement with Korea War, the Defendant agreed on the entire expenses for the undergroundization construction of this case. However, based on the above agreement between the Plaintiff and Korea War, it can sufficiently be inferred that the agreement was entered into with the content of the agreement, such as the letter of agreement on the provision and use of power distribution facilities or the letter of agreement on the provision and use of power distribution facilities (B No. 7 and the letter of agreement on the provision and use of power distribution facilities). The above agreement provides that the expenses incurred for pipeline construction and man-made works among the undergroundization construction of this case shall be borne by key communications business operators, such as the Plaintiff, etc.

3. Determination

A. Whether the Plaintiff’s occupation and use of the instant road constitutes illegal occupation and use

As to whether the Plaintiff’s act of occupying and using the instant road when installing and using the instant telecommunications line constitutes illegal occupancy, it is reasonable to view that the Plaintiff’s act of installing and using the instant telecommunications line as a matter of course is given the permission to occupy and use the instant road, and the following circumstances, i.e., “electric wires” is newly stipulated as one of the types of structures that can obtain the permission to occupy and use the road upon the construction of Article 24(5) of the Enforcement Decree of the Road Act on August 5, 1971. However, in light of the fact that the former owner is a facility connecting electric wires with electric wires, which can have the original meaning that can be integrated with electric wires, and the former owner’s right to use and use the instant electric wires can be seen as lawful if the Plaintiff did not obtain the permission to occupy and use and use the instant electric wires, and as long as the Plaintiff’s comprehensive right to occupy and use and use the instant electric lines was established before the installation of the instant telecommunications line from the former owner’s right to use and use of the instant electric lines.

B. The subject of the cost-sharing of the undergroundized construction of this case

1) The person sharing the cost under the Road Act

A) Whether the ground-to-land construction of this case constitutes “road construction” under the Road Act

In Article 23 of the former Road Act, the term "road works" means works related to new construction, reconstruction, and repair of roads. The term "construction of a new road" means "construction of a new road", "construction of a new road" means "construction of a new road or reconstruction of a old road", and "construction of a new road" means "construction of a new road or reconstruction of a old road", and "repair of a new road."

In this case, the ground excavation and packing restoration work are divided into the conduit Corporation and the Manman Construction, who are the construction work to relocate the equipment of the communications line, and the road excavation work and packing restoration work, which are the landfill construction, after excavating the road to this end. Among them, it is apparent that the pipeline construction and the Manman Construction in itself do not fall under the road construction work, and even though the contents of the road excavation work and packing restoration work are restored again, it is merely the excavation of the ground and re-re-re-re-re-expling for the emulation of the communications line. Thus, it is difficult to view that only the above road excavation work and packing restoration work are separate, and it does not constitute the "road construction" under the Road Act with the content that a new road is built or a deteriorated road is newly built.

B) A person who bears the costs of the instant undergroundized construction pursuant to Article 76 of the former Road Act

Article 76 of the former Road Act provides, “The whole or part of the expenses of road works required due to other works or acts may be borne by a person who has to bear the expenses of such other works or acts.”

However, as seen earlier, it is clear that the ground-to-land construction of this case does not fall under the “road construction” under the Road Act. Thus, it is not clear that the ground-to-land construction of this case does not fall under the “road construction” required due to other construction works or acts under Article 76 of the former Road Act. Therefore, there is no room for applying Article 76 of the former Road Act to the issue of bearing the expenses of the ground-to-land construction of this case.

Even if the road excavation work and the road packing work among the groundization works of this case constitute the road construction works required due to other works or acts under Article 76 of the former Road Act, the road excavation work and the road packing work of this case were incurred due to the road construction and the underground excavation work of this case, which are laid underground the communications line, etc., and the road excavation work of this case was performed due to the undergroundization work of the defendant promoted to improve the aesthetic view of the city and to create a safe and pleasant distance for citizens to walk. It is not caused by the plaintiff's installation and use of the communications line of this case without obtaining a separate permission from the defendant. Thus, the causes of the road excavation work and the road packing work of this case cannot be deemed to have been caused by the plaintiff, and rather, it shall be deemed to have been caused by the defendant. Accordingly, the person who bears the expenses for the road excavation work of this case and the road packing work of this case shall be the defendant who provided the cause, and as a result, the person who bears the expenses for the road excavation work of this case among the excavation works of this case shall be the defendant.

C) The subject of the cost-bearing of the instant undergroundized construction pursuant to Article 77(1) of the former Road Act

Article 77(1) of the former Road Act provides, “The expenses of other works required due to road works or expenses of other works required to execute road works shall be fully or partially borne by a person liable to bear the expenses of roads pursuant to this Act to the extent that the need arises, except in cases where special conditions exist to the permission under Article 38: Provided, That in cases where a road management agency executes road works, a person whose occupation and use fees have been reduced or exempted pursuant to subparagraph 3 of Article 42 shall bear the whole expenses of other works required due to occupation and use of the road.”

However, as seen earlier, it is clear that the road excavation work and the road packing work do not fall under the “road construction” under the Road Act, among the ground-based construction work in this case, it does not fall under the other construction work or the “road construction” required to implement the “road construction” under Article 77(1) of the former Road Act. Therefore, there is no room for applying Article 77(1) of the former Road Act to the issue of bearing the cost of the ground-based construction in this case.

D) Sub-committee

Ultimately, the defendant's assertion that the plaintiff should bear the costs of the land-to-land construction in this case pursuant to Articles 76 and 77 (1) of the former Road Act is without merit.

2) The subject of the cost-bearing of the instant undergroundized construction pursuant to Article 51 of the former Telecommunications Business Act

According to Article 51(1) through (3) of the former Telecommunications Business Act, in cases where the use of land, etc. on which telecommunications equipment and facilities of a key telecommunications business operator are installed or the land, etc. adjacent thereto is hindered due to a change in the purpose of use or the method of use of such land, etc., the owner or occupant of such land, etc. may request the key telecommunications business operator to take necessary measures for the relocation of telecommunications equipment and facilities or for the removal of interference (Paragraph 1), and in such cases, the key telecommunications business operator shall take necessary measures (Paragraph 2), and the costs necessary for such measures shall be borne by the person who has provided the cause for the removal or removal

However, as seen earlier, upon the Defendant’s request, the Plaintiff performed the landization construction of this case, which is laid underground below the road of this case by moving the communications line of this case to the Plaintiff’s expense. Since the Defendant, not the Plaintiff, was the person who incurred the ground for the landization construction of this case, the Defendant who incurred the ground for the landization construction of this case should bear all of its expenses.

Accordingly, the defendant bears the duty to remove the communications line of this case against the defendant, who is the owner of the road of this case. In such a case, the plaintiff cannot transfer the costs of the land of this case to the defendant pursuant to the main sentence of Article 51 (3) of the former Telecommunications Business Act. However, as the plaintiff is seen earlier, since the plaintiff is not an illegal occupant of the road of this case, the defendant's argument on the other premise is without merit.

C. Whether there exists a legal ground for the Plaintiff’s expenditure of the ground-to-land construction cost of this case

As seen earlier, the agreement of this case was concluded with the purport that the above construction work is conducted with respect to the undergroundization of the power distribution line installed and managed by Hanwon and the defendant, and that the defendant shares one-half of the expenses. However, the agreement of this case is not directly related to the plaintiff, and it cannot be deemed that the agreement between Hanwon and the defendant extends to the plaintiff, not the party concerned. Thus, the plaintiff paid the above construction cost without any legal ground in relation to the defendant.

In regard to this, the defendant can sufficiently see that the agreement between the plaintiff and the plaintiff on the form of this agreement or the agreement on the provision and use of power distribution facilities (Evidence B) was concluded with the same content as that of the agreement between the plaintiff and the plaintiff on the provision and use of power distribution facilities. In accordance with such agreement, the plaintiff alleged that there exists legal cause since the plaintiff spent the undergroundization construction expenses of this case. However, Eul evidence 7 is an agreement between the non-party LG Telecom Co., Ltd. and the Han Power Complex, not the plaintiff. However, it is insufficient to find that Eul evidence No. 7 and the fact-finding with regard to this court before the plaintiff was concluded with the purport that the plaintiff should bear the costs of underground power distribution facilities as alleged by the defendant, and there is no other evidence to support this otherwise, the defendant's assertion is without merit (Article 30 (1) of the Agreement between the plaintiff and the Han River, which provides that the operator should bear the obligations to remove the existing power distribution facilities only when the reason for the installation of the power distribution facilities becomes extinct or when the installation is installed.

In addition, even though the plaintiff did not have any legal ground for expenditure of the land-to-land construction cost of this case in relation to the defendant, the plaintiff entered into an agreement with Korea War and directly paid to the defendant who entered into the agreement of this case (the case of payment in the so-called termination relationship). In such a case, the plaintiff cannot make a claim for restitution of unjust enrichment against the defendant. However, as seen above, the plaintiff did not have any legal ground for the above agreement between Korea War and the plaintiff, the defendant's assertion on the other premise is without merit.

D. Sub-committee

Therefore, the defendant, as a person who incurred the cause of the landization construction of this case, shall bear the costs of the landization construction of this case pursuant to the main sentence of Article 51 (3) of the former Telecommunications Business Act, and as a result, the defendant obtains profits equivalent to the same amount by removing the expenses of the landization construction of this case without any legal cause, and thereby causes damages equivalent to the plaintiff. Thus, the defendant is liable to pay the plaintiff damages for delay damages from July 5, 2014, the following day after the delivery of the copy of the complaint of this case to the defendant. The defendant is not liable to pay the plaintiff's damages for delay damages from 5% per annum under the Civil Act until November 24, 2016, and from 15% of the total amount of the plaintiff's damages for delay from the next day to 20% of the total amount of the plaintiff's damages for delay from the date of delivery of the complaint of this case.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair, the part against the plaintiff falling under the above part of the judgment of the court of first instance shall be revoked and the payment of money recognized in the trial shall be ordered against the defendant. The plaintiff's remaining appeal shall be dismissed as it has no reason.

[Attachment]

Judges Kim Yang-tae (Presiding Judge)