[1] Whether Article 49-2 of the former Road Act shall apply mutatis mutandis to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects when determining or altering a road zone and publicly notifying such determination or alteration (negative)

[2] Whether a decision to modify a road zone is subject to prior notice under Article 21(1) of the Administrative Procedures Act or a disposition subject to hearing of opinions under Article 22(3) of the Administrative Procedures Act (negative)

[1] Article 49-2 (see current Article 48 of the Road Act) of the Road Act (amended by Act No. 8976 of March 21, 2008) / [2] Article 25 (see current Article 24) of the Road Act (amended by Act No. 8976 of March 21, 2008), Article 21 (1), and Article 22 (3) of the Administrative Procedures Act

Plaintiff 1, et al., the taking over of the lawsuit of the deceased Nonparty (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

(Attorney Yu-won, Counsel for defendant-appellant)

Seoul High Court Decision 2006Nu622 delivered on December 8, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the propriety and violation of the principle of proportionality

After compiling the selected evidence, the lower court determined that the instant disposition for the implementation of the master plan and concession agreement cannot be deemed to contravene the principle of proportionality in light of the purpose of the instant project, the method of promoting the project, the developments leading up to the instant disposition, and the degree of losses that the Plaintiff would suffer from the instant disposition, and that it does not seem to contravene the principle of proportionality in view of the type of the road to be installed as the instant project and the location of the instant land, taking into account the type of the road to be installed as the project and the location of the instant land as the site as the rest area.

In light of the records and relevant statutes, the court below's measures are just and acceptable, and there is no violation of the Constitution or misunderstanding of legal principles as to the appropriateness, equality, and proportionality as the grounds of appeal.

2. As to the illegality by mixing project implementation methods

The instant disposition is to incorporate the instant land, etc. into a road zone under Article 25 of the Road Act, and there is no assertion as to the succession of defects, etc., the method of implementation of the project in this case conducted under the former Public-Private Partnerships Act (amended by Act No. 7386 of Jan. 27, 2005) with respect to infrastructure shall not affect the instant disposition. In light of the records and relevant Acts and subordinate statutes, there is no error in the method of implementation. Thus, the lower court’s rejection of the Plaintiffs’ assertion in this part is justifiable, and there is no violation of the law regarding the method of implementation, such as the grounds for

3. As to procedural defects

A. Article 49-2 of the Road Act provides that when it is deemed necessary to implement road works, land in a road zone may be expropriated or used by applying mutatis mutandis the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”). It does not provide that the Public Works Act shall apply mutatis mutandis to the determination or alteration of a road zone to be considered as project approval or public announcement of project approval, and the determination or alteration of a road zone. The decision of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the violation of procedures for hearing opinions under Article 21 of

B. In full view of the fact that Article 2 subparag. 4 of the Administrative Procedures Act provides that the parties to the Administrative Procedures Act are directly parties to the disposition of the administrative agency, and that where a road zone is determined or altered, the road zone is determined or altered, and the drawings thereof are made available to the general public, the instant disposition that alters the road zone is not subject to prior notice under Article 21(1) of the Administrative Procedures Act or disposition that is subject to hearing of opinions under Article 22(3) of the same Act.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to prior notice or hearing procedure of the Administrative Procedures Act.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Kim Young-ran (Presiding Justice)