[1] The purport that the officially assessed individual land price of adjoining land should be used as the basis for the calculation of road occupation fees under Article 3 [Attachment 1] of the former Act on the Permission for Occupation and Use of Road and the Collection of Occupancy Charges, and the meaning

[2] The case holding that in a case where an administrative agency imposed a fee on a road occupied to be used as an entrance for a vehicle into a gas station by calculating the officially announced land price of the gas station on the basis of calculating the occupation fee, the land used as the site of the gas station cannot be deemed as being used for the same or similar purpose as the main purpose of occupation and use of the road, and thus, it cannot be the standard land for calculating the occupation fee of the said road

[1] Article 43 (2) of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) (see Article 41 (2) of the current Act), Article 26-2 (2) of the former Enforcement Decree of the Road Act (wholly amended by Presidential Decree No. 21234 of Dec. 31, 2008) (see Article 42 (2) of the current Act), Article 3 [Attachment 1] of the former Ordinance on Permission to Occupy and Use and Collection of Occupancy Charges and Occupation Charges (wholly amended by Ordinance No. 4610 of Mar. 12, 2008), Article 43 (2) of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008), Article 26-2 (2) of the former Enforcement Decree of the Road Act (wholly amended by Presidential Decree No. 21234 of Dec. 31, 2008), Article 26 (24) of the former Ordinance

Plaintiff

The head of Gangseo-gu Seoul Metropolitan Government (Attorney Kim Jong-hoon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu37024 decided July 1, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The purpose of Article 3 [Attachment Table] of the Seoul Special Metropolitan City Ordinance on the Permission for the Occupancy and Use of Roads and the Collection of Occupancy Charges, etc. (amended by Ordinance No. 4610 of Mar. 12, 2008), which stipulates matters necessary for the collection of occupation and use fees, is to calculate reasonable occupation and use fees based on the price of land adjacent to the road as it is not easy to calculate the price of the road itself and is to calculate reasonable occupation and use fees on the basis of the price of other land similar to that adjacent to the road. Thus, the term "a adjacent land" here refers to land adjacent to the occupation and use road, which is used for the same or similar purpose as the main usage of occupation and use fees (see Supreme Court Decision 2002Du5344, Nov. 8, 20

According to the reasoning of the judgment below, the plaintiff is occupying and using part of the roads (hereinafter referred to as the "road of this case") in order to operate the "○○○○○ Gas station" on the land site of Gangseo-gu Seoul Metropolitan Government (hereinafter referred to as "the land of this case"). The defendant selected the land which serves as the basis for calculating occupation and use fees of this case on March 7, 2008 and applied the prescribed rate in the officially assessed individual land price to the plaintiff as occupation and use fees of this case. Accordingly, the land of this case is being used as the site of the gas station, while the road of this case is being used as an entrance for vehicles entering the gas station, the land of this case, which is the site of the gas station, cannot be deemed as being used for such purpose identical or similar to such purpose of use. Thus, in light of the legal principles as seen earlier, the land of this case cannot be calculated as occupation and use fees of this case.

Although the judgment of the court below was partially inappropriate, the conclusion that the disposition of this case, which used the land of this case as the standard land for calculating occupation and use fees of the road of this case, was unlawful, is just, and contrary to the allegations in the grounds of appeal, there is no illegality.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)