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The judgment below
The part against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.
The plaintiff.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the Defendant’s ground of appeal
A. Permission to occupy and use a road under Article 61(1) of the former Road Act (amended by Act No. 13086, Jan. 28, 2015; hereinafter “former Road Act”) is an act of establishing a right to use a specific part of a road separately from general use.
A road management authority shall have the discretionary authority to determine the place, area, and period of occupancy and use, which are the details of the occupancy and use permission, taking into account the eligibility of applicants, the purpose of occupancy and use, the necessity of special use, and the influence on the public interest (see Supreme Court Decision 2002Du5795, Oct. 25, 2002). Permission to occupy and use a road is to permit a specific use of part of a road, and it is likely to hinder the general use of the road, the scope shall be limited to the extent necessary
Since the road management authority’s inclusion of non-necessary areas in the area of occupation and use while granting permission to occupy and use the road is erroneous in fact-finding, which serves as the basis for exercising its discretionary power, the part that does not require special use is illegal.
In such a case, the road management authority that has granted permission to occupy and use a road can ex officio revoke the part that is not necessary for special use of the road that has been effectively established due to the foregoing defects.
However, in such cases, when an administrative agency intends to revoke ex officio retroactively, it should be compared and compared with the necessity of the public interest to revoke the revocation, the protection of trust and stability of legal life, etc. to the disadvantage of the party, and then the need for public interest is strong enough to justify disadvantage, such as infringement of the party's vested rights.
Supreme Court Decision 2003Du4669 Delivered on May 25, 2006