[1] Whether the provisions of Articles 64 and 65 of the former Road Act, which provide for the apportionment of expenses related to road works, apply to a person who illegally occupies and uses a road without permission from the road management authority (negative), and whether the provisions of Article 72 of the former Electric Utility Act, which provides for the apportionment of expenses related to electrical facility works, also apply to electrical facility for electricity business installed without due process (negative)

[2] A person who is obliged to bear the costs of appurtenant works to be performed due to road construction in a case where other works that caused road construction are executed by the road management agency and are irrelevant to the need for road construction or management (=a person who has given the cause of road construction)

[1] A person who intends to occupy and use a road shall obtain permission from the road management authority, but the road management authority shall order a person who occupies and uses the road to relocate things or take other necessary measures. In light of the purport of Articles 40, 74, and 82 of the former Road Act (amended by Act No. 6655 of Feb. 4, 2002), which provide for criminal punishment against the person who occupies and uses the road without permission, where a person who occupies and uses the road performs appurtenant works due to road works or other works of the road management authority, the provisions of Articles 64 and 65 of the former Road Act that provide for sharing expenses for the road works shall apply only to the person who occupies and uses the road after obtaining permission to occupy and use the road lawfully pursuant to all the provisions of the same Act. In addition, in light of the purport of Article 92 of the former Electric Utility Act (amended by Act No. 637 of Jan. 26, 200), it is difficult to view that the provisions of Article 92 of the former Road Act or Article 742 of the same Act apply only to the person.

[2] In a case where the appurtenant works (C) performed by a road work (B) are required due to the occupation and use of a road by a person to whom the occupation and use fee has been reduced or exempted under Article 44 subparagraph 3 of the former Road Act (amended by Act No. 6655 of Feb. 4, 2002), if the road construction (B) solely takes place due to the need for the construction or management of a road by a road management authority, the proviso of Article 65 (1) of the same Act is applied, but if the road construction (C) takes place without such a need, the cost of the appurtenant works (C) shall be borne by the road management authority. However, if the road works (B) takes place due to other works, the cost of the appurtenant works (C) shall be borne by the person who has caused the cause of the road works (B) under Articles 64 and 65 (2) of the same Act, and such a legal principle is irrelevant to the need for the construction or management of a road.

[1] Articles 40, 64, 65, 74, and 82 of the former Road Act (amended by Act No. 6655 of Feb. 4, 2002); Articles 72 and 92 of the former Electric Utility Act (amended by Act No. 6637 of Jan. 26, 2002) / [2] Articles 44, 64, and 65 of the former Road Act (amended by Act No. 6655 of Feb. 4, 200)

[2] Supreme Court Decision 2001Da54984 Delivered on November 26, 2002

Korea Electric Power Corporation (Attorney Choi Young-soo, Counsel for defendant-appellant)

Gyeongsan-si (Law Firm Hanyang, Attorneys Cho Jong-soo, Counsel for the plaintiff-appellant)

April 29, 2004

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant ordered the plaintiff to pay to the plaintiff 53,936,860 won with 5% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking into account the following facts: Gap evidence Nos. 1, 2, and 4; 1-4; 1-5; Eul evidence Nos. 6; 1-10; Eul evidence Nos. 7-1, 2, 3; 8-1-2; 8-1-4; and 9-1-4; and Eul evidence Nos. 9-1-4; and part of the witness's testimony that he/she had the right to wrong testimony.

A. As a part of the disaster prevention project, the Defendant started to perform the construction of new drain pumps and reservoir facilities at 557-3, Yangsan-si, Yangsan-si (hereinafter referred to as the “instant drainage facility construction”) around December 199, which connects the 35 national highways under his management and the above discharge pumps to the access road construction and the above national highways (hereinafter referred to as the “instant drainage facility construction”).

B. At the time, two main poles of the Plaintiff were installed on the roads 549-15, Yangsan-si, the location where the access road to the said drainage pumps is to begin. On May 22, 2000, the Defendant requested on May 22, 2000 that the Plaintiff had an obstacle to the drainage pump construction of this case (hereinafter referred to as the “the first removal request”), and on August 8, 2000, the Plaintiff was performing the construction of the first removal of the main poles from the construction cost of KRW 16,119,70 to the Newdong-si 473-5 ditches in Busan-si (hereinafter referred to as the “construction work name”).

C. Meanwhile, among the national highways of the above 35, on the ground of the above 270-19, 270-21, 802-9, 811-7, the Plaintiff’s 5 main poles and power distribution lines (hereinafter referred to as “second main poles”) were respectively installed on the ground of the Plaintiff’s 5 main poles and 200-7 ground (hereinafter referred to as “third main poles”) in the 35 North Korea-si, Yangsan-si (hereinafter referred to as “the 3 main poles”), and the Plaintiff’s 8 main poles and power distribution lines (hereinafter referred to as “third main poles”) were installed on November 21, 200 among the national highways of the above 35, on the ground that the Defendant, on the ground that the said 2 and 3 former owners were installed in the new discharge pumps stations, which did not interfere with the drainage construction of this case, brought into the Plaintiff into the construction cost of each of the above 20-6 main poles around April 10, 2001 and 206-15.

D. After that, as the design of the access road construction by the Defendant was modified, the Defendant requested the Plaintiff to transfer the above prior theory on December 17, 2001, as the first 14 electric utility model was located in the new access road construction section, which had been newly established at the 101 J-293, hereinafter referred to as the “4 prior construction”) and the Plaintiff transferred the said 14 electric utility model around January 2002, with the amount of 11,792,070 won around 2002 (the name of the construction work, 201-J-293, hereinafter referred to as the “4 prior construction”).

E. Around July 24, 1999, the Plaintiff applied for permission to occupy and use the road for the purpose of installing 45 copies of the former week including the third week on the national highways between the third week in the vicinity of the New Urban Apartment located in Yangsan-si, Yangsan-si, which is the managing agency of the said national highways, around August 1999, and the Yangsan-si shall grant permission to occupy and use the road for a period of 5,600 won and 10 years around August 199, and the management agency shall, when it makes a request for relocation, relocate the entire amount at the expense of the person to be permitted (hereinafter referred to as the “subsidiary of this case”).

F. The plaintiff did not obtain permission from the road management authority with respect to the first and second poles installed on the national highways of No. 35, and the execution of the first and fourth relocation construction works of the first to the fourth relocation construction works (hereinafter "the relocation construction works of this case") at its own expense and did not claim the relocation expenses against the defendant.

2. The parties' assertion

A. The plaintiff's assertion

Since the instant drainage facility construction was implemented by the Defendant as a basic local government, not a road management authority, for the instant drainage facility construction, the instant drainage facility construction is implemented by the Defendant, who is the construction contractor, under the provisions of Articles 64 and 65(2) of the Road Act or Article 72(1) of the Electric Utility Act, and thus, the Defendant bears all of the instant relocation construction cost. As such, the Defendant, as unjust enrichment, should return to the Plaintiff the total amount of the relocation construction cost incurred by the Plaintiff.

B. Defendant’s assertion

Article 64 of the Road Act and Article 72 of the Electric Utility Act cannot apply to removal of the former owner and transmission line from the Plaintiff’s expense on the ground that the Defendant, who occupies and uses a road without permission for occupation and use of the road, may claim that the former owner and transmission line be removed from the Plaintiff’s expense. In addition, with respect to the third former owner’s relocation theory for which permission for occupation and use of the road was granted, the Plaintiff, who has been granted reduction of and exemption from the road occupation and use fees under the proviso of Article 65(1) of the Road Act shall bear the relocation expenses, and the relocation expenses of the former owner shall be borne by the Plaintiff, who

3. Relevant statutes

A. The former Road Act, etc. (amended by Act No. 6655 of Feb. 4, 2002; hereinafter the same) concerning the occupation and use of roads

Article 40 (Occupation and Use of Roads)

(1) Any person who intends to build, rebuild, alter, or remove structures, things, or other facilities in a road zone, or to occupy and use roads for other purposes shall obtain permission from the road management agency.

Article 43 (Collection of Occupation and Use Fees)

(1) A road management agency may collect occupation and use fees from an occupation-user of a road under Article 40.

Article 44 (Restriction on Collection of Occupation and Use Fees) Where the occupation and use of a road under Article 40 falls under any of the following subparagraphs, the occupation and use fees under Article 43 may be reduced or exempted under the conditions as prescribed by the Presidential Decree:

3. Where it is for a public project having a significant impact on the national economy and prescribed by Presidential Decree.

Article 26-5 (2) and (3) (3) 3 of the Enforcement Decree of the Road Act provides that the term "project prescribed by the Presidential Decree as a public project that has a significant impact on the national economy" shall reduce one half of the occupancy charges by power supply facilities, telecommunications facilities, oil pipelines, gas supply facilities, heat supply facilities and other similar facilities.

Article 74 (Dispositions Issued against Violators of Acts and Subordinate Statutes)

(1) The road management agency may order the cancellation of permission or approval granted under this Act or any order issued by this Act, the suspension of such effect, the alteration of conditions, the discontinuance of works, the rebuilding of structures or the transfer of things, or take or order other necessary dispositions or measures, for the persons falling under any of the following subparagraphs:

1. A person who violates this Act, any order issued under this Act or any disposition taken thereby;

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding seven million won:

4. A person who has occupied and used a road without permission in violation of the provisions of Article 40 (1) (excluding a person who has temporarily repaired objects, etc. on a road);

(b) Provisions of the Road Act concerning expenses incurred in road works;

Article 24 (Construction, Maintenance, etc. of Roads)

(1) Works concerning new construction, reconstruction and repairs of roads (hereinafter referred to as "road works") and their maintenance shall be executed by the road management agency concerned, except as otherwise provided for in this Act or other Acts.

In a case where road works have become necessary due to any works or acts other than road works (hereinafter referred to as "other works or acts") by the management agency, the management agency may have the conductor of the relevant other works or other actors execute the works.

Article 64 (Causer’s Liability) The whole or part of the expenses of road works required on account of other works or acts may be borne by the person liable to bear the expenses of such other works or acts.

Article 65 (Expenses on Appurtenant Works)

(1) The whole or part of the expenses necessary for other works required on account of road works or for executing road works, except for the case where special conditions exist with respect to the permission (including the case of occupying and using by consultation or approval as referred to in Article 8; hereinafter the same shall apply) under Article 40, shall be borne by the person liable to bear the expenses on roads under this Act to the extent that such need arises: Provided, That the person whose occupation and use fees have been reduced or exempted under subparagraph 3 of Article 4, shall bear the whole of the expenses on other works required on account

(2) Where road works under paragraph (1) have been necessitated on account of other works or acts, the provisions of Article 64 shall apply mutatis mutandis to the expenses of such other works.

C. The former Electric Utility Act (amended by Act No. 6637 of Jan. 26, 2002)

Article 72 (Bearing of Expenses, etc.)

(1) Where there exists a reciprocal hindrance or obstruction between electric installations for or private use for the electricity business and electric installations of other persons and other goods, the person who provided the cause shall take measures necessary for the removal of the hindrance or obstruction or bear the expenses to be incurred for such measures.

Article 92 (Use of Public Land)

(1) An operator of the electric utility business may, where it is necessary to install electric lines for the electric utility on the land managed by the State, a local government or other public institution, use it with permission from the manager

4. Determination

A. Determination on the part of Nos. 1, 2, and 4

In light of the purport of Articles 40, 74, and 82 of the former Road Act, which provides for the criminal punishment of a person who occupies and uses a road without permission, a person who intends to occupy and use a road shall obtain permission from the road management authority, but the road management authority shall order the person who occupies and uses the road to relocate things, etc., and in light of the purport of Articles 40, 74, and 82 of the former Road Act, which provides for the criminal punishment of the person who occupies and uses the road, the provisions of Articles 64 and 65 of the former Road Act, which provide for the sharing of expenses incurred in the road works, shall apply only to the person who occupies and uses the road by obtaining permission lawfully pursuant to all the provisions of the Road Act, and it is difficult

In addition, in light of the purport of Article 92 of the former Electric Utility Act, Article 72 of the same Act shall be deemed to apply only to electric installations for the electricity business or electric installations for private use installed through lawful procedures under Article 92 of the same Act or Article 40 of the Road Act.

Therefore, Article 64 and Article 65(2) of the former Road Act or Article 72(1) of the Electric Utility Act cannot be applied to the expenses incurred in the relocation construction performed by the Plaintiff for the first, second, and fourth poles who occupied and used a road without permission (in the case of the relocation construction, the relocation construction was implemented at the request of the Defendant for the relocation construction of the 14th poles at the request of the Defendant for the relocation construction, and the relocation construction was implemented at the request of the Defendant for the relocation of the 14th poles, and it is difficult to regard the Defendant’s request for the first relocation as an implied permission to the Plaintiff, and it is difficult to regard it as an implied permission to the Plaintiff for the occupation and use of the 14th poles, and there is no data about the fact that the Defendant obtained the permission to occupy and use the 1st generation works, and thus the same legal principles shall apply).

B. Determination on the part of the third removal project

In a case where the appurtenant work (CB) implemented due to the road construction (BB) becomes necessary due to the occupation and use of a road by a person whose occupation and use fees have been reduced or exempted pursuant to Article 44 subparagraph 3 of the former Road Act, the road management authority’s exclusive implementation of the road construction (B) is subject to the proviso of Article 65(1) of the former Road Act, and the road management authority’s implementation of the road construction (CB) solely due to the need for the construction of a road or the management of the road. However, if the road construction (B) takes place due to other construction (AB), the cost of the appurtenant work (C) shall be borne by the person who has provided the cause of the road construction (B) pursuant to Articles 64 and 65(2) of the former Road Act (see, e.g., Supreme Court Decision 201Da54984, Nov. 26, 2002). Such a legal principle is irrelevant to the construction of a road or the road management authority.

According to the above facts, in the case of the third new construction works, the plaintiff was exempted from the occupation and use fees under Article 44 subparagraph 3 of the former Road Act, and the third new construction works (B), which caused the third new construction works, were needed due to the drainage facility construction of this case. In the absence of other circumstances, the drainage facility construction of this case was implemented by the defendant as a local government, and is not implemented due to the need for the construction or management of the road by the road management authority. Thus, in principle, the third new construction works are subject to Articles 65 (2) and 64 of the former Road Act, and are subject to the provisions of Article 65 (2) and 64 of the former Road Act, which are the implementer of the drainage facility construction of this case. However, the defendant, while granting the permission to occupy and use the third previous road, the main construction of this case is subject to the provisions of Article 65 (2) of the former Road Act, and the above additional provisions of Article 65 (2) of the former Road Act shall be excluded from the application of Article 66 (4) of the same Act.

5. Conclusion

Therefore, the plaintiff's claim for return of unjust enrichment of this case, which is premised on the application of Articles 64 and 65 (2) of the former Road Act or Article 72 (1) of the former Electric Utility Act as to the cost-bearing of the relocation construction of this case, is dismissed as it is without merit

Judges Oh Jeong-tae