Requirements for the application of the Road Act to the site incorporated into the road under the Urban Planning Act

In order for the site incorporated into a road as a traffic facility within the urban planning zone under the Urban Planning Act to be applied mutatis mutandis under the Road Act, there must be a legitimate urban planning for the disputed land, and the urban planning is conducted through several legal procedures, so it cannot be deemed that there was a legitimate urban planning only by the designation and public announcement of the

Article 10 of the Road Act, Article 9 of the Enforcement Decree of the former Road Act

Plaintiff 1 and one other, Counsel for the plaintiff-appellee

Attorney Han-chul et al., Counsel for the defendant

Seoul High Court Decision 72Na1562 delivered on November 1, 1972

All appeals are dismissed.

The costs of appeal shall be borne by the defendant.

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

Even if a site incorporated into a road as a traffic facility within the urban planning zone pursuant to the former Urban Planning Act (hereinafter referred to as the "Act") is similar to the theory that the Road Act is applied mutatis mutandis pursuant to Article 9 (2) of the Enforcement Decree of the Road Act (amended by the current Act, Article 10 (2)), it may be said that the urban planning is lawful. Since urban planning is conducted through various legal procedures, the decision-making by the Minister of Construction and Transportation alone cannot be deemed lawful, and the facts acknowledged by the court below are only designated and publicly announced by the above Minister (the public notice of the land tax item was invalidated by the reason that the public notice of the original tax item becomes invalid, so the project operator cannot be deemed to have lawfully used the land of this case) and there is no room to regard the application of the Road Act to the disputed land.

Therefore, it is difficult to say that the original judgment was erroneous in the disposition rejecting the argument of the lawsuit in the same purport.Therefore, it is so decided as per Disposition by unanimous assent, without merit.

Justices Ahn Byung-soo (Presiding Justice)