In fact, the occupation and use of roads and the imposition and collection of prescribed occupation fees

In order to collect fees for the occupation and use of roads, first of all, it should be prior to the permission for the occupation and use of roads under Article 40 of the Road Act, so the fact that the occupation and use of roads is simply occupied without the permission for the occupation and use cannot be seen as the occupation and use of roads under the Road Act

Articles 40, 43, and 35 of the Road Act

Supreme Court Decision 75Nu26 delivered on July 8, 1975 (Supreme Court Decision 11013Da11013, Supreme Court Decision 23Na54 Decided July 8, 197, Article 40(1)1835 of the Road Act, Court Official Gazette 520, 8589)

Daeil Construction Company

Seoul Special Metropolitan City Mayor

The disposition that the defendant imposed 7,604,000 won on the plaintiff on March 22, 1974 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

(1) On March 22, 1974, the fact that the Defendant imposed 7,604,000 won on the Plaintiff by using the public site (the road site in the apartment building site) occupation charges (hereinafter referred to as the above occupation charges) for the public site (the road site in the apartment building site), there is no dispute between the parties.

(2) The defendant's attorney is the ground for imposing the above occupation charges. The defendant's attorney is the road site managed by the defendant, which is the road of 284-6 501.8 square meters on October 1967. The plaintiff occupies and uses this road for the purpose of profit-making by applying the above apartment building to 129.3 square meters on August 501. The above apartment building is completely adhered to the ground surface and underground, and the remaining 372.5 square meters are composed of the above apartment building, and the above 10th of the ground surface and the above 10th of the 20th of the 197th of the 197th of the 197th of the 197th of the 197th of the 197th of the 197th of the 197th of the 10th of the 197th of the 10th of the 197th of the 10th of the 197th of the 2th of the 197th of the 10th of the 3th of the building.

(3) Therefore, as to whether the Plaintiff occupied and used the instant road with lawful permission from January 1, 1973 to December 31 of the same year, which was subject to the disposition, the Plaintiff’s entire purport of the party’s pleading in light of each of the written evidence Nos. 9,10 (each motion) without dispute over the establishment, the Plaintiff is sufficient to recognize the fact that the Defendant applied for permission to occupy and use the instant road, or obtained permission from the Defendant upon application, as to the occupation and use between January 1, 1973 and December 31 of the same year.

Article 40 (1) of the Road Act provides that "any person who intends to build, rebuild, alter, or remove structures, things, or other facilities in a road zone or to occupy and use a road for other purposes shall obtain permission from the road management agency," and Article 43 (1) of the same Act provides that "the road management agency may collect occupation and use fees from a person who occupies and uses a road pursuant to Article 40," and Article 35 (2) of the same Act as applied mutatis mutandis pursuant to Article 35 (2) of the same Act provides that matters concerning the collection of occupation and use fees shall be prescribed by the ordinance of the local government to which the management agency belongs. Thus, the Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and Use Fees (Ordinance No. 731, Sep. 30, 197; No. 5 of the Seoul Special Metropolitan City Ordinance No. 731, Sep. 30, 197) stipulates the types of structures, things, or other facilities for which permission for occupation and use can be granted under Article 3.

Therefore, in full view of each provision of the above Road Act and the above collection ordinances, it is deemed that the permission of the road management agency should first be prior to collecting road occupation and use fees. Thus, the plaintiff's mere fact that the plaintiff simply occupies and uses the road without permission cannot be viewed as the road occupation and use fees under the above Road Act. Accordingly, it is not subject to the imposition of occupation and use fees based on the above Road Act. Accordingly, the defendant's disposition of the occupation and use fees against the plaintiff is limited to the legal relation where there is no disposition of the occupation and use fees against the plaintiff, and its illegality

(4) Thus, the plaintiff's claim for revocation of the disposition imposing road occupation and use fees of this case is well-grounded. Thus, it is unnecessary to determine the remainder of the plaintiff's remaining arguments, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judges Han Man-Shan (Presiding Judge)