Whether a disposition imposing additional occupation and use fees on a person who has already paid the occupation and use fees after the period of permission expires is null and void as a matter of course (negative

Even if the Plaintiff, who was granted permission to occupy and use the road, voluntarily pays the fees imposed on the period of occupation and use that expired, if the paid fees fall short of the standards prescribed by the law due to the Defendant’s error in calculation, etc., the pertinent fees may be imposed in accordance with the contents of the contract or the nature of the law or the interpretation thereof. In such a case, even if there is a defect in the disposition imposing additional fees, it cannot be said that there is no legal relation or fact at all subject to the imposition of fees, and it cannot be said that there is nothing to be any legal relation or fact at all, which is subject to the imposition of fees, nor it is nothing more than the Defendant’s imposition

Articles 43 and 35 (2) of the Road Act

Attorney Lee Jong-tae, et al., Counsel for the defendant-appellant

Attorney Shin Young-young et al., Counsel for the defendant

Seoul High Court Decision 87Gu1259 delivered on April 7, 1988

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

In light of the reasoning of the judgment below, the court below acknowledged that the above road and ditch as indicated in the judgment of the plaintiff from 1971 to 12.31 each period of occupation and use from January 1, 1981 to 1981 each year was stipulated as a certain amount and obtained the occupation and use permit. The defendant had already been paid the occupation and use permit for the period from May 20, 1987 to December 31, 1985 when all of the occupation and use fees were paid due to the expiration of the period from May 1, 1982 to December 31, 1985. The court below determined that the Plaintiff already paid the occupation and use charge for the period from May 1, 1982 to December 31, 1985 and imposed it on the plaintiff as additional occupation and use charge with the difference from the paid occupation and use charge as stated in the Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and Use. Thus, the defendant's right to impose the occupation and use permit as stated in the above Municipal Ordinance should not be applied.

However, even if the Plaintiff voluntarily paid the fees for occupation and use, if the fees for occupation and use already imposed by the Plaintiff fall short of the standards prescribed by the law due to the Defendant’s error in calculation, etc., it may be deemed that there may be cases where additional imposition is made for the shortage, depending on the nature of the terms and conditions of the law or the interpretation thereof. In such a case, even if there is a defect in the disposition imposing additional fees for occupation and use, it cannot be said that there is no legal relation or fact which is subject to the imposition of the fees for occupation and use, and the legal relation or fact which is subject to the imposition of additional fees for occupation and use and it is nothing more than the Defendant’s imposition of the fees for occupation and use and it can be said

Therefore, the judgment of the court below that the disposition of this case was judged to be null and void as a result of a significant and apparent defect was affected by the misapprehension of the legal principles as to the invalidation of an administrative disposition as a matter of course, and thus, it is reasonable to discuss this issue.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won