Relationship between Article 130 (3) of the Local Autonomy Act and Article 16 of the Enforcement Rule of the Seoul Metropolitan Government Ordinance on Collection of Road Occupancy Fees

Article 16 of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and Use Fees, which is related to a special law prior to Article 130(3) of the Local Autonomy Act, shall apply to road occupancy and use fees, if the Ordinance and the Enforcement Rule thereof were enacted pursuant to Articles 43 and 35(2) of the Road Act, and Article 16 of the said Rule does not become null and void in violation of Article 130(3) of the Local Autonomy Act.

Article 130 (3) of the Local Autonomy Act, Article 35 (2) of the Road Act, Article 143 of the Road Act, Article 16 of the Enforcement Rule of the Seoul Metropolitan Government Ordinance on the Collection of Road Occupancy Charges

Supreme Court Decision 81Nu117 Delivered on October 13, 1981

[Defendant-Appellee] Defendant 1 and 3 others

The movement of the litigation performer, Park Jong-ho, Seoul Metropolitan Government;

Seoul High Court Decision 79Gu62 delivered on November 25, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal are examined.

Article 43 of the Road Act provides that a person who occupies and uses a road shall collect occupation and use fees from the person who occupies and uses the road pursuant to Article 40 of the same Act, and Article 35 (2) of the same Act shall apply mutatis mutandis to matters concerning this occupation and use fees and the collection thereof shall be determined by the Ordinance of the Ministry of Construction and Transportation in cases of national highways, and by the Ordinance of the local government to which the relevant road management authority belongs in cases of other roads. Accordingly, the defendant Seoul Special Metropolitan City enacted the Seoul Special Metropolitan City Ordinance No. 1002 and the Enforcement Rule of the Seoul Special Metropolitan City Ordinance No. 1580 to collect occupation and use fees of roads of Article 16, and a person who has an objection to the imposition of occupation and use fees of Article 130 (3) of the Local Autonomy Act shall raise an objection within 30 days from the date of receipt of the notice of payment of occupation and use fees of the above Act. In addition, Article 130 (3) of the same Act provides that a person who is subject to imposition or collection of fees of Article 130 of the Road Act may submit an objection to the above Special Act.

Therefore, according to the court below's legal determination, the plaintiff received a notice to pay the road occupation and use fees of this case from the defendant on December 14, 1978 and submitted a written decision on January 10, 1979, which is within 30 days, to the Seoul Special Metropolitan City Mayor, the disposition agency, and filed the lawsuit of this case within the legitimate period for filing a lawsuit. Thus, the lawsuit of this case is deemed to have gone through legitimate pre-trial procedure under the Administrative Litigation Act. Therefore, the court below's decision to the same purport is justified in the judgment that the lawsuit of this case was lawful, and there is no error of law in incomplete deliberation due to erroneous application of the law, and the Supreme Court's decision of this case is related to the case where a person who is subject to the disposition of imposition of the fee for use fees of local government's public facilities, and it is not appropriate in this case, and Article 16 of the Enforcement Rule of the Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and use Fees of this case cannot be admitted as independent opinion.

Therefore, this case's appeal is groundless and 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 judges.

Justices Lee Il-young (Presiding Justice)