(영문) 부산지방법원 2006.2.9.선고 2004구합4841 판결

1. On October 4, 2004, the Defendant’s disposition of imposing KRW 3 billion on the Plaintiff for metropolitan transport facility charges of KRW 5,301,00 against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The following facts are not disputed between the parties:

A. Around February 8, 2002, a use farm was announced to the Defendant as an urban design district by the Busan Metropolitan City Notice No. 200-3 on Jan. 8, 2000. Around October 5, 2000, a use farm proposed to establish a district unit plan with respect to the use farm district of 185-1 won in Nam-dong, Busan Metropolitan City, which was announced as a topographical map by the Busan Metropolitan City Notice No. 200-241 on Oct. 5, 200. Accordingly, the district unit plan was modified as a district unit planning zone by the announcement No. 202-176 on Jun. 28, 2002, and the district unit plan was determined and announced by the announcement No. 2002-231 on Aug. 28, 2002.

B. In the process of planning and determination, a consultation was held on the traffic impact assessment for the formulation of district unit planning and on the traffic system improvement plan for the crosssection prior to the increase in the traffic volume as a means of use located in the vicinity, and on September 10, 2002, an agreement was made to separately settle the project cost of KRW 8 billion for the sake of expanding the section from 12m to 20m from 20m in the south-gu Busan Metropolitan City from the front of the increase in the increase in the number of light bridge to the front of the increase in the number of light bridge to the upper intersection (hereinafter “instant road”).

C. On August 5, 2004, the Plaintiff acquired the status of the project implementer from a Yongsan farm, and obtained approval from the Defendant to newly build 15 units of apartment houses with a total of 3,000 households units on the above 185-1 and 34 units on the ground of the above 3,000-1 and 34 units of land from the Defendant around May 5, 2004.

D. On October 4, 2004, the Defendant calculated charges for metropolitan transport facilities for the said housing construction project under the Special Act on the Management of Intercity Transport in Metropolitan Areas (hereinafter “Wide-Area Transport Act”) with respect to the Plaintiff, according to the method of calculation, calculated “standard construction cost per square meter 】 imposition rate 】 total floor area 】 6.16,020,467 won. The Defendant, in fact, imposed the instant charges on the Plaintiff by applying only the reduction rate of 50% on the ground that the instant roads fall under access roads for the occupants of the newly constructed apartment in this case, on the ground that the instant roads fall under the access roads for the occupants of the newly constructed apartment.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant road falls under the main arterial roads corresponding to the auxiliary arterial roads or auxiliary arterial roads, which are roads connected to the main arterial roads, and cannot be seen as access roads to the apartment complex scheduled for the new construction of the instant case. Therefore, in calculating the charges for metropolitan transport facilities, the instant charges should be deducted. In such a case, there is no metropolitan transport facilities charges to be borne by the Plaintiff.

(2) Therefore, the instant disposition that was otherwise deemed unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(1) Facts

The following facts may be acknowledged if Gap evidence 1-1, 2, 13, 12, 15, 17, 18-1 through 30, 4, 5, 27, 7, 23, and 27 are added to the entries and videos of Gap evidence 1-2, 12, 15, 17, 18-1 through 30, 4, 5, 27, 23, and 27, as a result of on-site inspections by this court

(A) The instant road, which is a main line, was coming from the irrigation channel located in the south-gu Busan Metropolitan City, which is a main line, and through the flow channel of Seocheon-dong, is about 12 meters wide and about 2.3 kilometers wide from the front intersection in front of the extension intersection in the same Gu, and is part of the 3-102 lines at the south-gu Busan Metropolitan City, which is determined and publicly notified as the office mountain road by the Nam-gu, Busan Metropolitan City. The road is limited to the 3-102 lines at the middle of the said regular light intersection and the 3rd-gun planned site in the naval zone around the said regular intersection.

(B) The apartment site to be newly built in this case, even if the nearest point is located, is located far away from the water level as at the front place of the light intersection, which is the end of the road of this case, and 3-131 lines as at approximately 1.38 km from the front place of the light intersection to the site of the newly built apartment site of this case, will be newly constructed.

(C) At the vicinity of the road of this case, the roads of this case are directly adjacent to the Dong name Information University, Hyundai Amphak apartment complex, social social gathering walk-si maintenance industry company, Dong state automobile maintenance industry company, Dong state automobile maintenance industry company, Dongju industry company, Busan Regional Food and Drug Institute, Korea Marine and Fisheries Training Institute, Nam-gu Waste Treatment Center, Southern-gu Urban Complex, New Airport, Damban Park, and Yju Cemetery Cemetery, etc. The roads of this case are adjacent to the new roads of this case, and the new roads of this case are adjacent to the new roads of this case, and the new roads of this case are adjacent to the new roads of this case at the vicinity of the above today's 3rd Gamba Park and its surrounding sea area, such as the new apartment site of this case. In addition, the new roads of this case are adjacent residential areas, etc., such as the Sungdong Airport Park and its neighboring sea area, etc., such residents and users are currently utilizing the roads of this case at all times or frequently.

(D) On the other hand, with respect to the instant charges, the Plaintiff (the subject of the agreement at the beginning was a Yongsan farm) imposed the total amount of the project cost necessary for the road expansion of the instant road, set the estimated project cost of KRW 8 billion, and separately settled if the project cost is increased or decreased as a result of the construction in the future. The current estimated project cost is expected to be much more than the above 8 billion, and the Plaintiff paid KRW 3.3 billion out of the instant charges to the Nam-gu Busan Metropolitan City, Busan Metropolitan City, on December 26, 2005, which continued in the instant case.

(2) Determination:

(A) Article 11 subparag. 4, Article 11-2(2)4, and Article 11-3(1)2 of the Intercity Transport Act provide that a person who carries out a housing construction project under the Housing Act within the urban planning zone of a metropolitan area shall pay charges for intercity transport facilities calculated in accordance with the prescribed formula [((standard construction cost per square meter x imposition rate x imposition rate x total floor area)] x 0.5]. Article 16-2(3)2 of the former Enforcement Decree of the Intercity Transport Act (amended by Presidential Decree No. 18915 of Jun. 30, 2005) provides that one of the amounts included in the above deduction amount shall be national expressways, motorways, national highways, Special Metropolitan City roads, Metropolitan City roads, Metropolitan City roads, Si/Gun/Gu roads or local roads under the Acts and subordinate statutes related to roads outside the district, zone or project area where the project is carried out [the whole or part of expenses related to the construction cost of (a) and expenses related to the roads or local roads under subparagraph (c) or (d) thereof].

② Meanwhile, Article 9 subparag. 3 of the Rules on the Determination, Structure and Standards of Urban Planning Facilities defines the main arterial roads as “road which forms the framework of Si/Gun as roads to cope with mass passing traffic by connecting major areas in Si/Gun or between Sis/Guns.” The auxiliary arterial roads as “road constituting the outer range of neighboring residential areas, which connects the main arterial roads to the main arterial roads or major traffic generating sources of Si/Gun, and constitutes the outer range of neighboring residential areas, which connects the passage of neighboring residential areas to the main arterial roads.” In addition, Article 2 subparag. 7 and 8 of the Regulations on the Standards, etc. for Housing Construction, and each subparagraph of Article 4 of the Enforcement Decree of the Housing Act defines as “road which connects the traffic of neighboring residential areas to the main roads, which is an urban planning facility under the National Land Planning and Utilization Act, the roads as prescribed by the Ordinance of the Ministry of Construction and Transportation, the roads, the entrance roads of the Special Metropolitan City, local roads under the Road Act, or the roads installed under the relevant Acts and subordinate statutes.”

(B) As above, the purpose of Article 16-2(3)2 of the Enforcement Decree of the Intercity Transport Act, excluding the provision on the criteria for deduction of charges for intercity transport facilities under Article 25 of the Regulations on the Standards, etc. of Housing Construction, is to secure financial resources required for the construction and improvement of intercity transport facilities in order to alleviate traffic congestion in metropolitan areas by bearing part of the charges for intercity transport facilities to the causing provider or beneficiary in preparation for traffic demand that rapidly increase due to housing site development projects, etc. in large cities areas. In the case of roads falling under any of the items of Article 16-2(3)2 of the Enforcement Decree of the Intercity Transport Act, the imposition of charges is common to the purport of imposing charges because the effect of contributing to the mitigation of traffic congestion in metropolitan areas and metropolitan areas in terms of their functions is to contribute to the reduction of traffic congestion in metropolitan areas. On the other hand, access roads under Article 25 of the Regulations on Standards, etc. of Housing Construction are not subject to multi-unit houses or multi-unit houses, and thus there is no need to reduce the double traffic charges.

② Therefore, access roads under Article 25 of the Regulations on Standards, etc. for Housing Construction should be for the traffic convenience of the occupants of multi-family housing, as roads leading to the entrance of the relevant housing complex from the long-term road to the entrance of the relevant housing complex only or mainly for the traffic convenience of the occupants of multi-family housing. Thus, even if a road falling under any item of Article 16-2 (3) 2 of the Enforcement Decree of the Intercity Transport Act passes through or is located adjacent to a housing complex and multi-family housing residents use the road, such road cannot be deemed as access roads insofar as its function is not solely or mainly for the traffic convenience of the occupants of multi-family housing (see Supreme Court Decision 2004Du4673, Sept. 3, 2004).

(C) In light of such relevant Acts and subordinate statutes and legal principles, access roads under Article 25 of the Regulations on Standards, etc. of Housing Construction mean roads from a long-term road to the entrance of the housing complex. The roads of this case are difficult to be deemed as access roads to the newly constructed apartment complex of this case in light of their location and distance, such as the location and distance from the site scheduled for the new construction of this case and the site planned site of the new construction of this case. ② In addition, the roads are adjacent to the roads of this case, including several apartment complexes, which are ordinarily or frequently used by the residents and users, such roads cannot be deemed as roads for traffic convenience of the occupants of the newly constructed apartment complex of this case. ③ The roads of this case are determined and publicly announced as 00,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,00,00.

(D) Therefore, the instant disposition that took place differently from the foregoing ought to be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.