The meaning of “the occupation and use of a road” as provided in Article 38 of the Road Act and the standard for determining whether the act of establishing and using an underground connecting passage is occupation and use of a road

Article 38 of the Road Act (wholly amended by Act No. 12248, Jan. 4, 2014)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Law Firm LLC, Attorneys So-young et al., Counsel for the defendant-appellant)

The head of Jongno-gu Seoul Metropolitan Government (Law Firm LLC, Attorneys Kim Jae-hwan et al., Counsel for the defendant-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Jung-gu, Attorneys Seo-Gyeong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu548 decided October 30, 2012

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal by the Defendant and the Intervenor are examined together.

1. The term "road occupation and use" as stipulated in Article 38 of the Road Act means the so-called special use of a specific part of a road, which is used in a tangible and fixed manner, separately from such general use, with respect to a road for public use. Such special use of a road is not always exclusive or exclusive, but it is possible to coexist with the general use of the road according to its intended use. In such a case, the road occupation and use part at the same time is public use of the general public, and it cannot be said that it is not a road occupation and use. On the other hand, the main use and function of the underground connecting road is to be used for the passage of the people entering a specific building, and it is not limited to that of the general public by taking more inconvenience than the original use of the road. Thus, if the underground connecting passage is provided for the special use of the road rather than for the general use, it is difficult to view it as the act of constructing and using the road as the special use of the road to the extent that it is used by the general public (see the Supreme Court Decision 2019Do292).

2. According to the reasoning of the first instance judgment as cited by the lower court and the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning. (1) The underground passage of the instant building, including the instant public underground news, including the instant construction, was already established on May 31, 191 by the long-term and comprehensive plan for the promotion of urban functions and aesthetic view within the zone, such as the downtown, etc., and was planned to be installed for the sake of the general convenience of the public, leading to the outflow and the inner road, and thus, it is difficult to view that the instant underground news was installed for the main purpose of using the instant building, and (2) The lower court determined that it was difficult for many general public to view that the instant public to have access to and use the instant underground passage of the instant building for the purpose of using the underground passage of the instant building, including the passage from the subway stations or from the underground streets to the public passage of the instant building for the purpose of using the underground passage to and from the public passage of each of the instant public passage, as it appears to have been installed for the public passage and from the instant building as the second underground passage.

In full view of the aforementioned legal principles and records, the installation and purpose of the public underground report of this case, the location and structure of the public underground report of this case, the use and function of the public underground report of this case, the location, structure, use, form and size of the Plaintiff-owned building connected to the public underground report of this case, the surrounding traffic situation, and the general public’s use situation, etc., the above determination by the court below is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to road occupancy and use, the standard point of determination as to road occupancy and use, the burden of proof, and the interpretation of the authorization conditions of the implementation plan of this case, and there were no errors in the misapprehension

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the Intervenor joining the Defendant, and the remainder is assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)