Plaintiff 1 and five others (Law Firm Lee & Lee, et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Sejong, Attorneys Lee Jong-hee et al., Counsel for the defendant-appellant)

The Korean Association of Persons Loved with the President of the Korean Association of Persons Loved (Law Firm Yun Law LLC et al., Counsel for the defendant-appellant)

October 19, 2017

Seoul Administrative Court Decision 2012Guhap28797 decided July 9, 2013

Seoul High Court Decision 2013Nu21030 Decided May 15, 2014

Supreme Court Decision 2014Du8490 Decided May 27, 2016

Seoul Administrative Court Decision 2016Guhap4645 decided January 13, 2017

1. All appeals filed by the Plaintiffs, the Defendant, and the Intervenor joining the Defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

On April 9, 2010, the Defendant confirmed that the permission to occupy and use the road granted by the Intervenor to the Intervenor (hereinafter “ Intervenor”) on April 9, 2010 is null and void. Preliminaryly, the Defendant’s permission to occupy and use the road granted to the Intervenor on April 9, 2010 is revoked.

2. Purport of appeal

A. The plaintiffs: The part against the plaintiffs in the judgment of the first instance (hereinafter "the judgment of the first instance") after remand is revoked. It is confirmed that the defendant's disposition of permission to occupy and use road against the intervenor on April 9, 2010 is invalid.

B. Defendant and Intervenor: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiffs’ claim corresponding to that part is dismissed.

1. Scope of the judgment of this court;

The Plaintiffs initially filed a claim for revocation of the disposition of permission to occupy and use a road on April 9, 2010 (hereinafter “instant permission”) based on Article 17(2)2 of the Local Autonomy Act,

However, in the first instance court prior to remand, the decision of rejection was rendered on the part of the claim for revocation of the building permit disposition, and the plaintiffs' appeal and appeal were dismissed, so the judgment of rejection of the first instance court became final and conclusive.

In addition, at the first instance court after remanding, the Plaintiffs lost the claim seeking confirmation of invalidity of permission to occupy and use the road of this case, and the claim for revocation of permission to use the road of this case was rejected by the Plaintiffs (defluence of the Plaintiffs), and the Plaintiffs against the Plaintiffs, respectively, filed an appeal as to the part against the Defendant against which the Defendant and the Intervenor lost. However, the Plaintiffs filed an appeal as to the claim for confirmation of invalidity of permission to occupy and use the road of this case and the claim for revocation of permission to use the road of this case by the primary claimant is limited to the claim for confirmation of invalidity of permission to occupy and use the road of this case and the claim for revocation of permission of this case by the conjunctive claimant.

2. Quotation of judgment of the first instance;

The reasoning of this court’s judgment is as follows, except for those determined by the following 3.3. As to the allegations raised by the defendant or intervenor in addition to or on the part of the following, the grounds for the judgment of the court of first instance are as follows. Thus, this court’s judgment is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

The “6,861.2 square meters” in the third place of the judgment of the first instance court shall be added to the “6,861.2 square meters” (hereinafter “instant church site”).

○○ Judgment No. 3 of the first instance court's 17th "the above land" is raised to "the church site of this case".

○○ The fourth 5th Circuit, the first instance court’s decision, add “the instant road” (hereinafter referred to as “the instant road”) to the following:

○ The first instance court's 4th 7th 7th 7th and 9th 19th 7th 7th 7th 9th 7th 7th 7th 7th 7th 19

The fourth decision of the first instance court (hereinafter referred to as the “instant permission to occupy and use the road”) shall be deleted.

The court of first instance added "the first instance judgment prior to the return" to "the first instance judgment prior to the return" in the fifth and 18th sentence of the court of first instance.

○ The 5th judgment of the first instance court in the 18th trial "this court" is regarded as "the court of the first instance".

○○ Decision No. 19 of the 5th Judgment of the first instance court was finalized, and the scope of the trial of this case was limited to the purport of the above claim.”

The first instance court's decision No. 6 of the first instance court's 4th sentence "A" and 10 to 12 shall be deleted, respectively.

○ Following the fact that “it may be deemed to fall under the category” in paragraphs 7 through 8 of the judgment of the first instance court, the following is added:

【, ⑤ ‘지하실’의 개념에 원상회복 가능성이 전제되거나 영구시설물에 준하는 정도가 아니어야 하는지에 관하여 보건대, ㉠ 구 도로법 시행령 제28조 제1항 [별표 1의2] 제2호 나목은 지하에 설치하는 점용물의 구조는 “견고하고 내구력 있으며, 다른 점용물에 지장을 주지 아니하며, 차도에 매설하는 경우에는 도로의 구조안전에 지장을 주지 아니하여야 한다.”고만 규정하고 있을 뿐, 지하에 설치하는 점용물이 반드시 원상회복 가능성이 있어야 한다거나 영구시설물에 준하는 정도가 아니어야 한다고 규정하고 있지 않은 점, ㉡ 구 도로법 시행령 제28조 제5항 제9호 에서도 ‘도로구조의 안전과 교통에 지장이 없다고 인정한 공작물·물건 및 시설’이라고 규정하고 있는 점에 비추어, 같은 항 제5호 소정의 ‘지하실’의 의미를 해석함에 있어서는 ‘도로구조의 안전과 교통에의 지장 여부’가 그 판단 기준으로 해석되는 점, ㉢ 구 도로법 제43조 제1항 본문에서 점용기간 만료 시 원상회복의무를 규정하고 있고, 구 도로법 제28조 제1항 제7호 에서 점용허가신청 시 ‘도로의 복구방법’에 관한 사항을 적어야 한다고 규정하고 있으나, 구 도로법 제43조 제1항 단서는 “원상회복할 수 없거나 원상회복이 부적당한 경우에는 그러하지 아니하다.”고 규정하고 있는 점에 비추어, 도로점용허가의 대상이 되는 구 도로법 시행령 제28조 제5항 각 호 의 시설물이 반드시 원상회복 가능성이 있어야 한다고 보기는 어려운 점, ㉣ 원고들은 ‘지하실’의 의미를 해석함에 있어서 구 공유재산법 제13조 에서 정한 ‘영구시설물’의 개념이 적용되어야 한다고 주장하나, 이는 구 도로법 제38조 제2항 , 같은 법 시행령 제28조 제5항 제5호 의 법문의 범위를 넘어서는 해석으로서 타당하다고 볼 수 없는 점, ㉤ 이 사건 도로 지하 부분에 설치된 이 사건 예배당 등이 원상회복이 불가능하고 영구시설물에 해당하여 이 사건 도로점용허가가 위법한지 여부는 구 도로법 시행령상 ‘지하실’의 개념을 해석하는 데 있어서 문제되는 것이 아니라, 이 사건 도로점용허가의 재량권 일탈·남용 여부를 판단하는 데 있어서 고려되어야 할 사항인 점 등에 비추어 보면, 구 도로법 시행령 제28조 제5항 제5호 소정의 ‘지하실’이 반드시 영구시설물에 준하는 정도가 아니어야 한다거나 원상회복이 가능한 것이어야 한다고 보기는 어려운 점】

The “A”)-related legal principles” shall be added below the 15th judgment of the first instance court.

○ The 10th judgment of the first instance court is the "Refranc of an administrative agency" at the discretion of an administrative agency.

Article 7(2) of the first instance court Decision No. 10-8 of the "in the event that conditions are attached to contributions, such contributions shall not be accepted (Article 7(2))."

○ “Determinations” shall be added below the second page of the 12th page.

○ From 12th to 14th eth 9th eth eth eth eth eth eth eth eth eths.

1) In full view of the respective descriptions and arguments stated in Gap evidence Nos. 7, 8, 11, 19, 20, Eul evidence Nos. 5 through 8, Eul evidence Nos. 22, the following facts are recognized.

① On December 18, 2009, the defendant asked the Minister of Land, Transport and Maritime Affairs as to whether the instant church building, including the instant wedding, can obtain permission to occupy and use a permanent facility, and even if permanent facilities are installed, the view that the permission to occupy and use a road can be granted under Article 9 subparagraph 9 of the former Enforcement Decree of the Public Property Act, and that the size of the building is a large building and it is impossible to restore it to its original state at the time of implementation of an urban planning project in the future. On January 26, 2010, the Minister of Land, Transport and Maritime Affairs presented to the defendant that "the feasibility of the road law and the permission to occupy and use the road, the influence of public interest, etc. should be comprehensively examined and determined by the road management authority."

② On February 22, 2010, the Seocho-gu Road Management Department prepared an internal review report related to the application for permission to occupy and use the instant road, and presented a proposal 1 and 2 that it is possible to grant permission to occupy and use the instant road. On underground occupancy, the Seocho-gu Road Management Department stated that it should undergo prior consultation with the relevant agencies, such as the waterworks corporation, the Korea Electric Power Corporation, and the gas corporation, with regard to underground occupancy and use.

③ On February 26, 2010, the Seocho-gu Road Management Department respondeded to the Defendant on February 24, 2010 that “The telecommunication facilities that may be in conflict with the telecommunication facilities due to early withdrawal from the road and that need to be removed according to the conflict of the road require a large period of time required for construction.” On February 26, 2010, the Seocho-gu Disaster Control Department respondeded to the Defendant on February 26, 2010 that “On-the-spot inspection, as a result of the on-site inspection, public sewage facilities are installed in this area, so it is essential for sewage treatment, and thus it is not possible to occupy and use them as sites.” On February 26, 2010, Seoul Urban Gas Co., Ltd sent to the Defendant that “In the event of removal of pipelines installed at the present, many facilities cause inconvenience to urban gas customers, so that urban gas pipelines can be removed without cooperation.” The Seoul Urban Gas Department responded to the Defendant that “the above consultation on the maintenance and management and management of the road water supply facilities may occur.”

④ On February 24, 2010, the Seocho-gu Road Management Department prepared the second internal review report with regard to the application for permission to occupy and use the road of this case as follows:

As a result of the table review included in the main text, it is not possible to construct permanent facilities on public property - under Article 13 of the Public Property Act and Article 9 subparagraph 9 of the Enforcement Decree of the same Act. However, it is difficult to construct structures on the public, ground and underground level to the extent that it does not interfere with the current use and utilization of public property by local governments. However, although Seoul Urban Gas Underground Facilities are installed at 150A107m and 3 air pressure pipes inside the same lot number, there is a lot of installation. (a) It is the premise that the expropriation of gas supply can be transferred to the situation where there are many people. (b) In addition, it is difficult to construct new facilities on public property through a specific three grounds at the time of transfer; (c) it is difficult to construct new facilities on public property and use on public property ; (d) it does not interfere with the current use and use of public property on the ground; and (e) it is difficult to construct new facilities on the underground surface, such as construction and permanent facilities on the underground surface at the time of the new road.

⑤ On February 24, 2010 and March 4, 2010, the Defendant asked the Seoul Special Metropolitan City Mayor about the instant permission to occupy and use the road. On March 8, 2010, the Seoul Special Metropolitan City Mayor sent the Defendant’s reply to the Seoul Special Metropolitan City Mayor that “Inasmuch as the permission to occupy and use a road is granted for the purpose of the public interest by constructing a road and providing administrative property to be provided for the public interest for the purpose of general traffic, it is necessary that the scope of suspension or infringement of public interest is limited to the minimum and short period, and it is necessary for the road management authority to determine whether to grant permission in consideration of the progress of return

(6) On March 4, 2010, the Defendant asked the Minister of the Interior and Safety on whether Article 13 of the Public Property Act and Article 9 (9) of the same Act apply to the underground occupancy and use of the road. On March 10, 2010, the Minister of the Interior and Safety responded to the following: “Facilities based on individual Acts, such as the Road Act, among the public property belonging to the administrative property owned by the local government, shall be subject to the Act, and the Public Property Act of the Public Property shall apply to other property; and this issue shall be dealt with by comprehensively examining the relevant Acts, such as the Road Act or the National Land Planning and Utilization Act, which are the basis for whether a building or structure may be constructed on the ground of the road.”

7) On March 3, 2010, the Intervenor submitted the instant application for permission to occupy and use the road of this case to the Defendant along with the “Written Elimination of Sea,” and on March 16, 2010, the Intervenor submitted “A scheme for providing public interest due to underground occupancy and use of the road” to the Defendant. On March 19, 2010, the Intervenor submitted the amendment to the MOU to the Defendant. Article 4 subparag. 1 of the said MOU provides that “the Intervenor shall prepare a space to install a child-care center and provide it to the Defendant.” Article 4 subparag. 5 of the said MOU provides that “The Defendant shall permit the permanent occupancy and use of the underground part of the road of this case in accordance with subparagraphs 1 through 4 above,” and Article 6 subparag. 3 provides that “limited to Article 4, the Parties shall have the legally binding force against the Parties.”

8) On March 22, 2010, an intervenor submitted a letter of commitment to contribute 325 square meters to the Defendant among the church buildings newly built to the Defendant. On March 22, 2010, the intervenor prepared an internal official document stating that permission to occupy and use a road and a plan to implement a building permit are to be granted on the same day as the Seocho-gu

(9) On April 9, 2010, the intervenor obtained permission to occupy and use the underground segment of the instant church on condition of donation, and obtained permission to construct the instant church building on June 17, 2010.

(10) On December 16, 2010, the Gangnam Water Service Office approved the relocation of the water supply pipes laid underground on the instant road. On January 7, 201, the Seocho-gu Disaster Control Department sent a reply to the consultation on the relocation and dredging of sewage facilities, such as sewage pipes, following the excavation of the underground part of the instant road. Seoul Urban Gas Co., Ltd also approved the relocation of the gas pipelines laid underground on the instant road surface on January 24, 201.

(11) An intervenor obtained approval for the use of the instant church building on September 3, 2014.

(2) In light of the following circumstances that can be acknowledged by comprehensively taking account of the facts acknowledged as above and Gap evidence No. 37, the first instance court prior to remand and the entire purport of pleadings, the court of first instance, and the court of this case’s on-site inspection results, the defendant, a road management authority, while granting the permission to occupy and use the road of this case, has violated the principle of proportionality and equity in comparing and balancing public and private interests, and thus, the permission to occupy and use the road of this case shall be revoked. Accordingly, the plaintiffs’ preliminary claim for the permission

① The Intervenor, including the instant road underground parts, installed facilities, such as towing dividends, video exhibition rooms, teaching rooms, scarving rooms, sexual waiting rooms, broadcasting rooms, etc., from the 6th to the 8th underground level, and parking lots, mechanical rooms, storages, and entry lamps from the 8th underground to the 6th underground level. The above underground installation of underground structures is not easy to restore their original state, but may entail considerable risks and responsibilities for their maintenance, management, and safety. Thus, the materials submitted by the Defendant alone cannot be seen as either that there is no room for, or completely resolving, such problems.

② The instant wedding dividends, etc. are mainly provided only for the use of church buildings and their related facilities, and do not necessarily need to be used in accordance with the usage of the road itself or for the public use of neighboring residents or public use of the road, and seems to have not been provided for public use. Accordingly, the Intervenor held free music meetings, etc. in the instant wedding dividends, etc. and opened them to neighboring residents, and thus, it is alleged that they are used for public purposes. However, the instant wedding dividends, etc. are a space for worship or religious-related activities by the members of a church, which is a religious facility, and the provision of use or place may be restricted at any time as alleged by the Intervenor. Thus, it is difficult to view that the Intervenor’s assertion alone alone is offered for public use.

③ In the case of similar cases that permitted the occupation and use of underground parts of roads, the administrative and policy decision making taking into account all the social, economic and cultural aspects of the pertinent local government, while the instant towing distribution, etc. installed on the underground part of the instant road by the permission to occupy and use the road of this case is not a facility necessary for the Defendant, but is a very limited facility with the social, economic and cultural meaning as being used mainly for the benefit of the Intervenor’s exclusive and private use or for the convenience of the use of towing distribution. Therefore, it is inappropriate to invoke the instant case.

④ Nevertheless, as seen earlier, it is difficult to refuse an application for permission to occupy and use similar contents in the future when granting permission to occupy and use the underground sections of the instant road on the ground that the said road was subject to the acceptance of childcare centers. As a result, there may arise adverse effects or side effects that may cause harm to public safety, as the underground sections of the road to be used for the public are used indiscreetly for private use. Furthermore, according to the changes in the environment of the surrounding areas, the road may have to develop the surrounding areas, including the underground parts, or lay off various underground objects and install the facilities. However, the road of this case may not be able to flexibly and dynamicly cope with the said changes by allowing the instant underground parts to be used permanently and exclusively as part of the instant church building due to the permission to occupy

⑤ As seen earlier, the instant weddings, etc. constitute permanent facilities prohibited in principle from constructing under Article 13 of the former Public Property Act. However, the Seocho-gu Road Management Department, the department under the jurisdiction of the Defendant, as at the time of the instant disposition of the permission to occupy and use the instant towings, etc., recognized the instant towings as permanent facilities for private exclusive use, and did not have cases for private exclusive use, nor interfere with the current use and use of public property. In light of the fact that there is no problem in the current usage and use of public property, the Seocho-gu Road Management Department prepared a review to the effect that the permission to occupy and use the instant towings is impossible under Article 13 and subparagraph 9 of the Public Property Act. At the time, the Seocho Road Management Department had gone through a prior consultation and inquiry with the relevant agencies regarding communications facilities, water supply pipes, urban gas pipes, sewage pipes, etc. installed in and adjacent to the instant road, which could not be seen as any inconvenience to the residents of the instant church due to the instant road occupation and use permission or the instant road installation works.

6) The Intervenor sent the letter of understanding and the amendment in the process of applying for permission to occupy and use the instant church building. Article 4 subparag. 1 and 5 of the Act provides that a permit to occupy and use the instant church building is granted on condition that a certain portion of the instant church building is donated (Article 4 subparag. 1 and 5). In fact, the Defendant granted the permission to occupy and use the instant church building on condition that a 325 square meters of the instant church building was donated among the instant church buildings. In light of the fact that the Defendant granted the permission to occupy and use the instant church on condition that a 325 square meters of the instant church building was donated, it is deemed that the Defendant granted the approval of the amendment to the letter of understanding submitted by the Intervenor or agreed with the Intervenor. Furthermore, Article 4 subparag. 5 of the amendment of the letter of understanding provides that a

7) Under the condition that the Intervenor obtained permission to occupy and use the instant church building, the Intervenor donated 325 square meters of the instant church building to the Defendant as a space for the facilities of the instant nursery, and the Defendant asserts that the Defendant achieved the public interest purpose of expanding childcare facilities for infants and young children through such donation. However, it is difficult to evaluate that the childcare center facilities established within the building of a specific religious facility could normally be friendly to the members of the relevant religion, and thus, it would not be easy for the ordinary people to use such facilities, or that there is no religion, to allow them to freely use without rejection or restriction.

(8) In addition, given the nature of the permission to occupy and use the road of this case, the road of this case, which should be provided for the public interest purpose of public use, was provided to the Plaintiff, a private person for exclusive and exclusive use. In other words, the underground part of the road of this case, which is not provided for the passage of the general public, is not directly related to the original function and purpose of the road, which is the passage of the general public, and thus, the permission to occupy and use the road of this case cannot be deemed to have a public interest purpose

9) In the construction of the instant church, the Intervenor may achieve its purpose without using the underground part of the instant road, so it is not necessarily necessary to occupy and use the underground part of the instant road. Nevertheless, it may be deemed that the Intervenor’s intention to construct a large building with the aim of large churches was reflected in the considerable part of the road.

⑩ 대법원은 교회가 지방자치단체장을 상대로 교회 건물 부지와 8m 도로를 사이에 두고 마주한 별도의 토지 지상에 지하 7층, 지상 14층, 연면적 12,929.97㎡의 가칭 ‘□□□□’ 건물신축허가를 받은 다음 위 교회 건물 지하주차장과 □□□□ 지하 2층을 연결하는 지하연결통로의 개설을 위해 지방자치단체 소유의 위 도로 지하의 점용을 전제로 한 건축허가변경을 신청하였으나 불허가처분을 한 사건(이하 ‘비교 사건’이라 한다)에서 위 불허가처분이 재량권을 일탈·남용한 위법이 없다고 판단하면서 그와 다른 취지의 원심판결을 파기하였다( 대법원 2008. 11. 27. 선고 2008두4985 판결 참조). 비교 사건과 이 사건의 사안을 대비해 보면, ㉠ 비교 사건에서는 점용허가 대상 도로의 지하에 별도의 매설물이 없었으나 이 사건 도로 지하 부분에는 상·하수도 시설, 통신시설, 가스시설 등이 매설되어 있었던 점, ㉡ 비교 사건에서는 교회 건물의 지하주차장과 □□□□ 지하출입구를 각 출구 또는 입구 전용으로 사용함으로써 오히려 일대 교통의 소통 및 안전에 도움이 될 수 있는 상황이었으나, 이 사건에서는 이 사건 도로점용허가로 인하여 주변 교통의 소통이나 안전에 도움이 될 수 있는 상황이 전혀 아닌 점, ㉢ 비교 사건에서 건축하고자 하였던 □□□□ 건물은 사회복지시설이나 이 사건에서 건축한 이 사건 교회 건물은 사적 종교단체의 종교시설인 점, ㉣ 비교 사건에서 지하연결통로를 설치하기 위하여 점용허가를 받고자 한 지하 부분은 폭 6.4m, 길이 8m로서 전체 면적이 51.8㎡에 불과하나 이 사건 도로점용허가의 대상인 이 사건 도로 지하 부분은 폭 7m, 길이 154m로서 전체 면적이 1,078㎡에 이르는 점 등을 알 수 있는바, 이 사건 도로점용허가는 비교 사건의 지하연결통로 설치를 위한 점용허가보다 재량권을 일탈·남용하였다고 볼 여지가 훨씬 크다.】

○ To delete from the 14th judgment of the first instance to the last 15th judgment.

○ The following shall be added to the second sentence of the judgment of the first instance.

Article 16 (Residents' Request for Inspection)

(1) Residents aged 19 years or older of a local government may request an audit and inspection to the extent that the number of residents aged 19 years or older as prescribed by municipal ordinance of the local government concerned is 500 persons in the City/Do, 300 persons in the large city with a population of 500,00 or more under Article 175, and 200 persons in the other Sis/Guns/autonomous Gus, and to the competent Minister in the City/Do, in the case of Cities/Dos, and in the case of Sis/Guns/autonomous Gus, the competent Minister, in the case of Cities/Dos, and in the

(2) No request under paragraph (1) shall be filed after two years elapse from the date on which the performance of duties was conducted or completed.

○ The following shall be added to the third sentence of the 17th judgment of the first instance.

(1) In any of the following cases, a resident who has requested the inspection of any of the matters concerning the disbursement of public funds pursuant to Article 16(1), matters concerning the acquisition, management, and disposal of property, matters concerning the conclusion or execution of contracts for sale, lease, or other contracts to which the relevant local government is a party, or matters concerning the imposition or collection of public funds, such as local taxes, rental fees, fees, fines for negligence, etc., may file a lawsuit with the head of the relevant local government (where he/she delegates his/her authority to the head of an agency to which he/she belongs for the management of the relevant matters, referring to the head of the agency to which he/she belongs; hereinafter the same shall apply)

○ The following shall be added at the next 13th of the 17th judgment of the first instance.

(4) A lawsuit under Paragraph (2) shall be brought within 90 days from any of the following dates:

2. In cases falling under paragraph (1) 2: The date he/she is notified of the result of the relevant audit or the details of the request for measures.

Except as otherwise provided for in this Act, litigation under paragraph (1) shall be governed by the Administrative Litigation Act.

Article 143 (Management and Disposal of Properties)

Property of a local government shall not be exchanged, transferred, leased, or used as a means of investment or payment, unless it is governed by statutes or municipal ordinances.

m. Administrative Litigation Act

Article 20 (Period for Filing Lawsuit)

(1) A litigation for cancellation shall be instituted within 90 days from the date on which the existence of disposition, etc. is known.

(2) A litigation for revocation shall not be instituted after the lapse of one year (in cases falling under the proviso to paragraph (1), one year from the date the ruling is made) from the date the disposition, etc. is made: Provided, That the same shall not apply where

○ The following shall be added to the 17th judgment of the first instance.

Article 3 (Restriction on Private Rights)

No private right may be exercised on lands, retaining walls, and other things constituting roads: Provided, That this shall not apply to the cases of the transfer of ownership or the settlement of mortgage.

○ The following shall be added below the 16th judgment of the first instance court.

3. Structure of occupying objects;

(b) The structure of an occupied object to be installed underground shall meet the following standards:

(i) are solid, solid and solid, and does not interfere with other occupancy objects;

(ii)in the case of being laid on a roadway, not to impede the structural safety of the road;

(m) Seocho-gu Seoul Metropolitan Government Ordinance on Permission to Occupy and Use Road and Collection of Occupancy Charges, etc. (amended by Seocho-gu Seoul Metropolitan Government Ordinance on December 18, 2014)

Article 2 (Permission for Occupation and Use of Roads)

(1) A person who intends to occupy and use roads shall obtain permission from the head of the Gu.

(2) Structures, things, and other facilities subject to permission to occupy and use a road, which are determined by a road management authority pursuant to Article 24 (5) 11 (No. 2) of the Decree, shall be as follows:

1. Advertising towers, advertising boards, private guide signs, and others similar thereto;

2. Street sales stand, oral repair stand, bus card sales stand, and others similar thereto);

3. Judgment on the appellate brief by the defendant or the intervenor

A. Defenses before the merits

1) The assertion that the claim for nullification and revocation of the instant permission to occupy and use the road was unlawful upon the final and conclusive judgment of rejection on the claim for revocation of the construction permission (defendant)

A) Summary of the argument

Since the facilities installed on the underground part of the instant road through the permission to occupy and use the road are included in the part of the building constructed by the permission, the instant permission disposition and the permission to occupy and use the road of this case are indivisible. However, the claim for revocation of the permission to occupy and use the road of this case on June 17, 2010 was rendered by the first instance court prior to remand, and the plaintiffs' appeal and final appeal were dismissed respectively, and thus, the Plaintiffs cannot dispute the illegality of the permission to occupy and use the road of this case, and thus, the instant

B) Determination

Where a principal authorization or permission is deemed granted, even if authorization or permission is deemed granted under the relevant provisions of law, it does not exist as an administrative disposition separate from the principal authorization or permission, and where a person intends to assert defects in authorization or permission, an appeal shall be filed against the principal authorization or permission disposition (see Supreme Court Decision 99Du10988, Jan. 16, 2001, etc.). Accordingly, upon receipt of a construction permission, an appeal shall be filed against the principal authorization or permission disposition (see Supreme Court Decision 99Du10988, Jun. 9, 2009, amended by Act No. 9770, Jul. 1, 2010, etc.). In such cases, where permission for occupancy or use of road is deemed granted under Article 38 of the former Road Act pursuant to Article 11(5)8 of the former Building Act, it shall be deemed impossible to assert defects in permission for occupancy or use of road while disputing the construction permission.

However, if the permission for the occupation and use of a road exists separately by applying the permission for the occupation and use of the road in addition to the permission for the occupation and use of the road, other than the permission for the occupation and use of the road, the illegality or defects of the permission for the occupation and use of the road can not be asserted. Therefore, even if the revocation lawsuit against the permission for the occupation and use of the road becomes final and conclusive, the revocation lawsuit can be instituted separately and the illegality of the permission can be asserted in the lawsuit.

As to the instant case, comprehensively taking account of the following facts: (a) Gap evidence Nos. 20, 21, Eul evidence No. 6-1, Eul evidence No. 7-1, and Eul evidence No. 7-1, the intervenor applied for the permission to occupy and use the instant road on March 2010; and (b) the defendant applied for the permission to occupy and use the instant road on April 9, 2010; (c) on April 28, 2010, the intervenor filed an application with the defendant for a construction permit to construct a church building on the site including the instant underground portion; and (d) the defendant granted the construction permit on June 17, 2010. The plaintiffs filed a request for revocation of the construction permit in addition to the instant request in the first and second instances prior to remand, but the first instance judgment was remanded to the court of first instance on the grounds that the eligibility of residents lawsuit was not recognized; and (d) the aforementioned judgment was dismissed only by the plaintiffs’ appeal that became final and conclusive.

The following circumstances revealed by the above facts, i.e., the permission to occupy and use the road of this case, separate from the permission of this case, it is difficult to see that the construction permission of this case is the premise of the permission of this case or the relation to each of the above dispositions is in a phased relationship. ② The plaintiffs can seek revocation of permission to occupy and use the road of this case through a resident lawsuit because the subject matter of the lawsuit is clear. ③ The claim for revocation of permission of this case is confirmed on the ground that it does not constitute the "matters concerning the management and disposition of property" under Article 17(1) of the Resident Litigation Act, and it is not recognized as qualified, and it is difficult to see that permission of this case and permission of the road of this case become final and conclusive on the ground that the above part of the claim becomes final and conclusive.

2) The conjunctive claimant’s claim that the revocation of the permission to occupy and use the road of this case is unlawful (the intervenor)

A) Summary of the argument

The date of permission to occupy and use the instant road on April 9, 201. The Plaintiffs filed a resident inspection claim on December 7, 201, which was one year and six months from the Plaintiff. On the other hand, the resident inspection claim is based on the premise of resident litigation, and thus, the filing period under Article 20(1) of the Administrative Litigation Act is applicable to resident inspection claim. Thus, the Plaintiffs’ resident inspection claim is unlawful as it was made at the expiration of 90 days from the date of becoming aware of the disposition of permission to occupy and use the instant road. Therefore, it is unlawful as well as the revocation claim on the permission to occupy and use the instant road.

B) Determination

On April 9, 2010, the date of the instant disposition to occupy and use the road was as seen earlier, and comprehensively taking account of the respective entries and arguments in the evidence Nos. 1, 5, and 22 as well as the purport of the entire pleadings, Plaintiff 1 requested the Seoul Special Metropolitan City Mayor to audit residents on December 7, 2011. Plaintiff 1, as a resident representative, requested the Seocho-gu resident to sign on the applicants’ roster pursuant to Articles 20(1) and 13(1) of the Enforcement Decree of the Local Autonomy Act, and Plaintiff 2, 3, 4, 5, and 6 signed on the applicants’ roster between December 26, 201 and January 4, 2012, and the Seoul Special Metropolitan City Mayor may recognize the fact that the resident’s lawsuit in this case was filed on December 29, 2012.

On the other hand, the following circumstances, i.e., (i) even if a resident lawsuit is based on the resident audit request, it cannot be deemed that the resident audit request itself cannot be deemed as a lawsuit and it is inappropriate to apply the filing period under Article 20 of the Administrative Litigation Act as it is. (ii) If the period for filing a lawsuit under the Administrative Litigation Act (90 days from the date on which the existence of the disposition is known, and one year from the date on which the disposition is made) is applied to the resident audit request as alleged by the intervenor, the legislative intent of Article 16(2) of the Local Autonomy Act, which separately provides that “the period for filing a resident audit request is 2 years from the date on which the affairs are handled or after the completion of the disposition is completed,” and (iii) the plaintiffs have requested the resident audit request on April 9, 201, which is within two years from the date on which the permission to occupy and use the road of this case was issued, the above argument by the intervenor is without merit.

B. Whether the criteria for determining illegality of the subject act in a resident lawsuit are limited to the financial accounting perspective

1) Summary of the assertion by the Defendant and the Intervenor

In the case of a resident lawsuit that examines the illegality of an act of financial accounting, the determination of illegality of the act of financial accounting should be made based on whether the act of financial accounting causes "economic damage" to the relevant local government from the perspective of the financial accounting. In other words, the criteria for the determination of illegality of the act of financial accounting should be based on whether the act of financial accounting causes an unfair financial loss to the local government, not on the whole "the illegality of the act of financial accounting as a general administrative act". Thus, the criteria for the determination of illegality of the act of financial accounting should be based on whether the act of financial accounting causes "the illegality of the act of financial accounting as an act of financial accounting." In addition, the reason why the act of financial accounting is exceptionally subject to the permission of the present case is not on the ground that the act of financial accounting is not on the ground that the act of financial accounting, but on the ground that the act of financial accounting, the determination of illegality

2) Determination

A) Eligibility for resident lawsuits

The purpose of the resident litigation system under Article 17 of the Local Autonomy Act is to ensure the legality of the administration concerning the financial accounting of the local government by seeking the prevention and correction of illegal financial accounting activities of the local government concerned. Therefore, a resident lawsuit may be brought against an act for the purpose of directly processing matters concerning the financial accounting of the local government. The term "matters concerning the management and disposal of property", which is matters concerning the financial accounting, means an act for the purpose of maintaining, preserving or realizing the value of property owned by the local government.

In addition to the general use of roads which are used for the free use of the general public, the road occupancy and use under Article 38(1) of the former Road Act refers to the so-called special use, which grants a specific person the special right to continuously use the roads by installing tangible and fixed facilities on a specific part of the roads (on the ground or underground non-road). Meanwhile, even if the road occupancy and use permission is based on the property value (use value) of the roads, given that the ordinary road occupancy and use permission directly affects the structural safety and function of the roads and the passage of the general public, it is often often accompanied by or overlaps with the nature of the road management act for the purpose of the road administration. Therefore, in a specific and individual case, when comprehensively considering the purpose of the occupancy and use permission, the substance of the use relationship formed by the occupancy and use permission, the relationship between the maintenance, preservation, and improvement of the original function and purpose of the road, the occupancy and use permission is mainly conducted by taking account of the property value of the road, namely, the road's exclusive use and management act of the general public beyond the property value of the road.

B) Criteria for determining illegality of permission to occupy and use the instant road

In full view of the above evidence and the above facts, since the road underground section subject to the permission for occupation and use is not subject to the original traffic of the general public, the permission for occupation and use of the road is not directly related to the original function and purpose of the road traffic of the general public. The purpose of the permission for occupation and use of the road is to allow the intervenor, who is a religious organization, to occupy and use the part exclusively as a religious facility site to be constructed underground, and it cannot be deemed that the purpose of the permission or the purpose of occupation and use is public interest. The substance of the use relation formed by the permission for occupation and use of the road of this case is to realize the value of the underground part of the road site as a whole and to grant a right to use and benefit in return for that part to a specific private person. In light of the above, the permission for occupation and use of the road of this case is a lease similar to the use of the above underground section to enable a third party to utilize it. In other words, the "matters concerning the management and disposition of property" affecting the property value of the road site

Furthermore, Article 143 of the Local Autonomy Act provides that "the property of a local government shall not be exchanged, transferred, leased, invested, or used as means of payment without complying with statutes or municipal ordinances." Article 9 (2) 1 (i) of the same Act provides that "management of public property shall be performed as autonomous affairs of the local government." In addition, Article 72 through 89 of the former Local Finance Act (wholly amended by Act No. 7663, Aug. 4, 2005; hereinafter "former Local Finance Act") provides that "the financial accounting standards of the local government concerning the financial accounting and accounting shall be prescribed in the former Local Finance Act (amended by Act No. 7665, Aug. 4, 2005; hereinafter "the former Local Finance Act"), but most of the provisions related to public property under the former Local Finance Act and the Public Property Management Act (amended by Act No. 7665, Aug. 4, 2005; Presidential Decree No. 38(1)6 of the Local Autonomy Act and the Local Government Act (amended by Presidential Decree No. 2717) shall be deemed to be an important public property or public property.

In addition, according to Article 9(2)1(i) of the Local Autonomy Act, the management of public property falls under the autonomous affairs of a local government (see Supreme Court Decision 2002Du7135, May 27, 2003). Article 169(1) proviso of the Local Autonomy Act provides that a higher administrative agency shall order the correction of any unlawful or unreasonable order or disposition in writing and may revoke or suspend if it is not performed within the prescribed period only when the execution of affairs by the head of a Si/Gun/Gu violates the provisions of statutes clearly and clearly, but also includes cases where the execution of affairs by the head of a Si/Gun/Gu is illegal by deviating from and abusing discretion (see Supreme Court Decision 2005Du63, March 22, 2007). As such, it is reasonable to interpret the principle of proportionality in a case where the act of financial accounting and accounting is in violation of the provisions of the Local Autonomy Act, as well as the principle of proportionality in a case where the ordinary disposition of financial accounting and accounting is violated.

In light of the above circumstances, the defendant's argument that the disposition of permission to occupy and use a road, which is a target act, in the lawsuit of this case, should not be considered in violation of the general principles of law, such as the violation of the Public Property Act, which is a law related to the financial accounting of local governments, proportional principles, and equality.

(c) In cases of permission to occupy and use a road in a special planning zone, whether an administrative agency has a wider discretion;

1) Summary of the Intervenor’s assertion

The instant site subject to the instant permission to occupy and use the road is located within the “Special Planning Zone.” However, the Special Planning Zone is designated as a place to induce strategic, creative, and efficient development with respect to an area difficult to be developed by a general method, and thus, the level of planning discretion of an administrative agency is recognized. Thus, barring any circumstances to deem procedural defect or considerable rationality, illegality should not be recognized.

2) Relevant legal principles

In order to achieve specific administrative objectives, such as the construction, maintenance, and improvement of cities, based on professional and technical judgments on urban policies, an act of establishing standards for activities to realize a certain order at a certain point in the future is not deemed unlawful unless there is any deviation or abuse of discretionary authority. However, although an administrative body has a relatively wide range of planning discretion in formulating and determining a specific urban planning, it is limited that not only the public interest and private interest of the persons related to urban planning but also the public interest and private interest should be fairly compared and balanced between the public interest and private interest. Thus, if an administrative body omits matters that should be included in the urban planning subject to consideration of the balance of interest but also lacks legitimacy and objectivity, it may be deemed an illegal disposition that deviates from or abused discretion, and the method of achieving such administrative purpose under the principle of proportionality (the principle of proportionality) shall not be deemed to be unlawful (see, e.g., Supreme Court Decision 96Nu1969, Jun. 19, 196).

The term "administrative plan" means an administrative plan established as an activity standard to realize a certain order at a certain point in the future by integrating and coordinating various administrative means related to each other in order to achieve a specific administrative objective such as the construction, maintenance, and improvement of a city based on a professional and technical judgment on administration. Since the relevant Acts and subordinate statutes, such as the Urban Planning Act, only abstract administrative goals and procedures, are stipulated in the Urban Planning Act, and do not have any specific provisions regarding the contents of the administrative plan, administrative agency has a relatively wide range of freedom in formulating and determining a specific administrative plan, while there is a limitation that the freedom of formation, which the administrative agency has, is not unlimited, but also a fair comparison and comparison between public and private interests as well as between public and private interests. Accordingly, where the administrative agency establishes and determines an administrative plan, where the administrative agency fails to provide a balance of interests in drafting and determining the plan, or where the administrative agency fails to include the matters that should be considered in the balance of interests, but lacks legitimacy and objectivity, such administrative plan decision is an abuse of discretion (see Supreme Court Decision 2003Du8686, Mar. 27, 20003).

(iii) the facts found.

The following facts can be acknowledged in light of the purport of the entire pleadings in the statements in Eul-B and 1 and 7.

A) A special planning zone II (△△△△△) including the instant church site (hereinafter “instant special planning zone”) was relatively underdeveloped compared to the long-term surrounding area due to illegal possession of a vinyl house. However, in around the end of 1999, the need for systematic development arose only after the relocation and removal of an illegal vinyl house was completed.

B) Accordingly, Article 202-269 of the Seoul Special Metropolitan City District Unit Planning Notice on June 24, 2002 set various guidelines for systematic urban development in harmony with the surrounding area regarding the instant special planning zone. A forest industry promoted the construction of a main complex building in the instant special planning zone around 2006, but failed to implement the project due to the lack of each plan and feasibility of urban infrastructure, etc. according to the district unit plan. This led to the failure of the project implementer to implement the development of the instant special planning zone, the said zone was left undeveloped for a long time.

C) On June 1, 2009, the intervenor purchased the instant church site which is part of the instant special planning zone from the Glim industry, and on October 30, 2009 and December 2, 2009, the intervenor proposed a change in the district unit plan by means of resident proposal to the defendant. Accordingly, the defendant applied for a change in the district unit plan to the Mayor of Seocho-gu Seoul Special Metropolitan City on December 31, 2009 after hearing residents’ opinions and consulting with the Seocho-gu Urban Planning Committee, and the Mayor of Seoul Special Metropolitan City on February 4, 2010 (hereinafter “Public Notice”) decided and publicly announced a change in the district unit plan (detailed development) of the instant special planning zone as a result of the Seoul Special Metropolitan City Public Notice No. 2010-31 (hereinafter “Public Notice in 2010”).

D) In the public announcement in 2010, the recommended purpose of the decision on the use of a building is defined as “living zone training facilities, library, performance hall among cultural and assembly facilities, and exhibition hall among cultural and assembly facilities”. In addition, in the public announcement in 2010, the part of “(c) the plan on the use, height, building-to-land ratio, floor area ratio, etc. of buildings; (vi) the decision-making protocol on other matters; (vi) the road and vehicle operation line plan; (vi) the head of a Gun/Gu, “establishment of a section prohibiting the access of a vehicle from the street change”; and (vi) the part under the change of the road and the vehicle operation line “where necessary facilities such as a passage are installed in the underground section later, permission to occupy and use the road under the Road Act

4) Determination

A) In light of the above legal principles, based on the professional and technical judgment on administration, administrative plans comprehensively and coordinate related administrative means to achieve specific administrative goals such as construction, maintenance, improvement, etc. of urban cities, thereby establishing activity standards for realizing certain order at a certain point in the future, and thus, the administrative body is relatively broad freedom of formation.

B) However, among the instant conjunctive claims, the instant conjunctive claim is not a case seeking the revocation of the administrative plan itself, but a case seeking the revocation of the instant permission to occupy and use the road. Considering the following circumstances, it is difficult to view that the instant permission to occupy and use the road solely on the ground that the instant road is located within the special planning zone is granted broad discretion as identical to the administrative

① The criteria for determining the weighing of interests derived from a wide range of planning discretion held by an administrative entity (hereinafter referred to as “culp order”) are only the methods of examining the illegality of the relevant administrative plan in the judicial review of the administrative plan itself, in which the freedom to form a wide range is recognized based on the nature of the administrative plan based on a professional and technical judgment, the abstractity of relevant statutes, etc., and it is difficult to deem that the same applies to the examination of the illegality of the individual disposition indirectly affected by the administrative plan beyond the dispositions directly related to the administrative plan itself or the administrative plan. Therefore, it is difficult to deem that a high level of planning discretion should be recognized even in the case of granting a separate authorization

② As seen earlier, in the instant public notice in 2010, the reason for planning and determination of the road and the rolling stock lines stated as “it is necessary to obtain permission to occupy and use the road under the Road Act when installing necessary facilities, such as passages, on the underground sections of the road following the drilling.” However, the foregoing phrase alone does not mean that the public notice in 2010 is scheduled to obtain permission to occupy and use the road in the instant case, or that the permission to occupy and use the road in 2010 is not included in the public notice in 2010, nor is it deemed that the road is included in the public notice in the same manner as the passage between the subway station and the building or the building, and it cannot be deemed that it was scheduled to use the same as the passage between the building or the building in light of the foregoing: (a) the current status of the use of the road underground section in the instant case.

Rather, the foregoing phrase appears to the purport that, in implementing an urban planning in accordance with the public notice in 2010, if necessary facilities, such as a passage, are installed on the underground part of the road, it shall meet the requirements under the Road Act and obtain permission to occupy and use the road through lawful procedures.

③ Article 52(3) of the National Land Planning and Utilization Act provides that a participant may relax restrictions on construction, building-to-land ratio limits, floor area ratio restrictions, etc. within specific use areas and specific use districts. Considering the fact that the provision of site for public facilities or the establishment of a public open area or open space within Class I district unit planning, such as the instant urban planning, may relax the building-to-land ratio, floor area ratio, and height restrictions, in cases of judicial review of individual administrative acts within the district unit planning zone, the discretionary power of the administrative agency should be broadly recognized and the comprehensive access to the district unit plan is necessary. However, in the public notice in 2010, “the items to be mitigated and mitigated in the floor area ratio of the special planning zone” are specifically provided for “the contents of the road in this case, but it

④ Rather, according to the 2010 public notice’s global planning guidelines, the recommended purpose is “living zone training facilities, libraries, and performance halls and exhibition halls among cultural and assembly facilities,” etc. among education, research and welfare facilities,” and it is doubtful whether the Intervenor constructed a church building within the instant special planning zone according to the above recommended purpose.

D. Whether the provisions prohibiting the construction of permanent facilities under Article 13 of the former Public Property Act are violated

1) Summary of the argument

Plaintiff 1 is premised on the possibility of reinstatement in light of Article 13 of the former Act on Public Property, which prohibits the construction of permanent facilities. As seen above, Plaintiff 1 asserts that the permission to occupy and use the road of this case is unlawful since it constitutes a building violating Article 13 of the former Public Property Act, since the instant towing distribution, etc. installed on the underground part of the road of this case cannot be deemed to have a possibility of reinstatement.

2) Relevant statutes

(1) The Public Property and Commodity Management Act (amended by Act No. 1006 on February 4, 2010, and enforced August 5, 2010)

Article 13 (Prohibition on Constructing Permanent Facilities)

No person, other than the head of the relevant local government, shall construct a building, ditch, bridge, etc. or other permanent facilities on public property: Provided, That this shall not apply to cases prescribed by Presidential Decree where there is no problem in the use and utilization of such public property.

(1) Enforcement Decree of the Public Property and Commodity Management Act (amended by Presidential Decree No. 25441, Jul. 7, 2014)

Article 9 (Prohibition on Constructing Permanent Facilities)

In any of the following cases, permanent facilities on public property may be constructed pursuant to the proviso to Article 13 of the Act:

9. Where a structure is installed in the public, geographical, or underground of the relevant public property to the extent that does not impede the current use and utilization of public property by a local government;

/Local government's public property operation standards (established on August 3, 2016 by the Ministry of Government Administration and Home Affairs No. 2016-30)

Article 7 (Construction of Permanent Facilities)

(1) Where the head of a local government permits any person other than the relevant local government to construct permanent facilities, he/she shall allow such installation to the extent that such installation does not hinder the use, purpose, etc.

(2) To allow the construction of permanent facilities, the affairs shall be handled by referring to the details of attached Table 2.

[Attachment 2] Standards for Installation of Permanent Facilities (Related to Article 7)

3. Where a structure is installed in the public, underground, or underground to the extent that does not impede the present or future use of public property by a local government pursuant to Article 9 (1) 9 of the Enforcement Decree means cases, etc. of installing structures, such as underground stations, transmission towers, antenna lines, mobile phone base stations attached to a building, etc., other than buildings, etc. for which superficies are created;

3) Determination

A) As a matter of principle, Article 13 of the former Public Property Act prohibits the construction of permanent facilities on public property, and delegates the scope of exceptionally permitted permanent facilities to the Presidential Decree. Accordingly, Article 9 Subparag. 9 of the former Enforcement Decree of the Public Property Act provides that a permanent facility may be constructed on the underground to the extent that does not impede the current use and utilization of the pertinent public property as of the local government. Meanwhile, the term “permanent facilities” generally refers to “facilities, the de facto indivisible relationship with the pertinent public property if they are constructed as of a building, ditch, or bridge, and which are in an express nature and are difficult to remove them easily without any damage to the public property, or the “facilities, the removal of which is difficult or the cost of which is required to be easily removed without any damage to the public property” or “facilities, the decommissioning of which is difficult to move easily due to their physical difficulty, and which may cause a considerable amount of damage to the public property,” etc.

B) According to the reasoning of the judgment of the court below, it is difficult to view the above portion of the above Act as the 1st, Gap evidence No. 9-2, Eul evidence No. 5-2, Eul evidence No. 8-2, and the overall purport of the pleadings as the result of the on-site inspection of the court of first instance and the court of this case, and it is difficult to view the above portion of the above Act as the 1st, which is an integral part of the above construction site and the 1st, as it is hard to view it as the 1st, there is no possibility that the above part of the above construction site No. 8-2, which is an integral part of the above construction site No. 1, and it is difficult to view it as the 1st,000 square meters of the above construction site and the above construction site No. 1, and it is also difficult to view it as the 1st,000 square meters of the above construction site and the above construction site No. 7th of the above construction site.

C) As to this, the Defendant asserts to the effect that the violation of the Public Property Act, which is a special law, in the case of granting permission to occupy and use the road, can not be an issue. In this regard, the Minister of Public Property Act, which was newly established by Act No. 1006 on February 4, 2010 and enforced on August 5, 2010, provides that “The management and disposal of public property and commodities, except as otherwise provided for in other Acts, shall be governed by this Act,” and the Minister of Public Administration and Security may recognize the relation between the Public Property Act and the Road Act on March 10, 2010 according to the evidence No. 12-2 of the same Article, the Minister of Public Property Act, among the public property belonging to the property owned by a local government, shall apply to the facilities based on the individual law of the Road Act, and with respect to other property, the Public Property Act, which is a general corporation on public property.”

On the other hand, the Seoul Special Metropolitan City Urban Safety Office has authoritative interpretation as follows.

As the Road Act has a mission to ensure the general use of roads for appropriate road management, the provisions of other Acts that conflict with the provisions of the Road Act cannot be applied in a road zone and the Road Act shall be applied first, as long as it impedes the general use of roads. However, the provisions of the State Property Act or the Public Property Act governing State-owned or public property in principle prohibition of permanent facilities on the relevant property in order to prevent the decline in the future property value by forming the contributions of the people, must be observed at the time of granting permission to occupy and use the relevant property. - In particular, allowing the construction of private permanent facilities prohibited by the State Property Act or the Public Property Act for administrative property used for public purposes to occupy and use the road violates the prohibition provisions of the State Property Act or the Public Property Act. - If the general use of the road is excluded by permission to occupy and use the road and only is used by the persons related to the building (workers or customers), it is not subject to permission to occupy and use the road, but is not the area of the Public Property Act.

On the other hand, as seen earlier, the basic laws and regulations on the acquisition and management of the public property of local governments can be seen as the Public Property Act, and the Road Act is the special provisions on the occupancy and management of the road, but the Public Property Act of a general corporation may be applied in cases where the Road Act does not specifically provide for the occupancy and management of the road. Meanwhile, Article 3 of the Road Act prohibits the exercise of private rights to a road in principle and the main sentence of Article 43(1) of the Road Act prohibits the duty to restore when the period of occupation and use expires. In light of the fact that Article 13 of the Public Property Act on the Prohibition of the Installation of Permanent Facilities provides for the duty to restore the road upon the expiration of the period of occupation and use, Article 13 of the same

E. As to the assertion of the ruling of assessment

1) Summary of the argument of the defendant and the intervenor

Even if the permission to occupy and use the road of this case is unlawful, if the decision to revoke it becomes final and conclusive and accordingly, the part of the road of this case is to be restored to the original state, it would be contradictory in relation to the disposition of the building permit finalized in the remand trial, ② the number of members of the church of this case could not use a wedding dividend during the restoration period, causing considerable hindrance to religious activities, ③ the traffic inconvenience and traffic congestion of neighboring residents due to large-scale restoration works for restoration, ④ the participant should pay a million won as the cost of restoration, ④ the part of the church of this case may incur direct disadvantage that the function of the church of this case is restricted as a whole, ⑤ the damage suffered by residents is an intangible and conceptual form, and thus, the damage is sufficiently preserved with the road occupation and use fee of 40 million won per annum. Therefore, the cancellation of the permission to occupy and use the road of this case shall not be deemed to be inappropriate for public welfare. Therefore, in the trial of this case, the ruling should be rendered under Article 28(1) of the Administrative Litigation Act.

2) Relevant statutes

【Local Autonomy Act

Article 17 (Residents' Lawsuit)

Except as otherwise provided for in this Act, litigation under paragraph (1) shall be governed by the Administrative Litigation Act.

m. Administrative Litigation Act

Article 28 (Judgment of Assessment)

(1) Where it is deemed that the revocation of disposition, etc. is considerably inappropriate for the public welfare even when the plaintiff's request is well-grounded, the court may dismiss the plaintiff's request. In such cases, the court shall clearly indicate that the disposition, etc. is illegal in the text

(2) In rendering a judgment under the provisions of paragraph (1), the court shall investigate in advance the extent of the damage the plaintiff will suffer, the method of compensation and other circumstances.

3) Relevant legal principles

Although an administrative disposition is unlawful, it may be extremely exceptionally permitted if it is revoked or modified, even if it is considerably inappropriate for the public welfare. Thus, whether it falls under such requirement is strictly determined by comparing and comparing the necessity to revoke or alter an illegal or unreasonable administrative disposition and the situation contrary to public welfare that may arise from the revocation or alteration thereof. ① The progress and degree of involvement of the other party to the disposition up to the disposition; ② the content and cause of the illegal cause; ③ the proportion of the parts related to the illegal cause in the entire disposition; ③ the anticipated result of revocation of the disposition, particularly on the basis of the pertinent disposition, whether there is a need to maintain the effectiveness of the disposition, such as protecting the trust of the majority interested parties; ④ the details of infringement on rights and interests, such as damages suffered by the other party to the disposition due to the illegality of the pertinent disposition; ⑤ Whether it is possible to compensate for damages suffered by the other party to the disposition due to supplementation of the administrative agency; ④ The extent of the measure taken by the disposition after the pertinent disposition and the other party’s attitude to compensate for damages, etc. should be considered to the extent that the Plaintiff’s right to seek damages is unlawful.

4) Determination

In light of the progress until the permission to occupy and use the road of this case, ① the participant, who is the other party to the disposition, actively requested the permission to occupy and use the road of this case, ② the permission to occupy and use the road of this case, in violation of the prohibition of permanent facilities under Article 13 of the former Public Property Act, was allowed to construct the church of this case, which is permanent facilities, and furthermore, the participant's right to occupy and use the church of this case, which is a permanent facilities, was offered only for the use of a specific private person or organization. The above illegal part of the road of this case is not small. ③ If the permission to occupy and use the road of this case is revoked, part of the road of this case shall be removed from the road of this case, and the participant's additional expenses shall not be paid, and even if the removal of the above part of the road of this case is restricted, it is difficult to find that the intervenor's new administrative disposition of this case's violation of the permission to occupy and use the road of this case's violation of the public interest and public interest order.

4. Conclusion

Therefore, the part of the judgment of the court of first instance concerning the primary and conjunctive claims for the permission to occupy and use the road of this case is justifiable. Thus, the appeal by the plaintiffs, the defendant, and the intervenor is dismissed as it is without merit. It is so decided as per Disposition.

Justices Cho Jong-dae (Presiding Justice)

(1) In the petition of appeal filed as of January 31, 2017, the plaintiffs filed an appeal, stating that "the part against the plaintiffs in the judgment of the court of first instance against the plaintiffs shall be revoked. With respect to the permission to occupy and use the road granted to the Love Council on April 9, 2010, the defendant, including Nonparty 1 and Nonparty 2, filed an appeal against the public officials of Seocho-gu Seoul Metropolitan Government Office and the Love Council on Love Council on Compensation for Damages," but it is unclear whether the appeal filed an appeal against the claim seeking revocation of the permission to use and use the road of this case, "the part against the plaintiffs in the judgment of first instance" in the purport of the appeal as of April 19, 2017, the purport of the appeal is to seek revocation of the whole part against the plaintiffs in the judgment of first instance, and it is reasonable to deem that the defendant's preliminary claim for revocation of the permission to occupy and use the road of this case as to the intervenor's claim for revocation of partial withdrawal of appeal."

2) Article 28(5)9 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 21234, Dec. 31, 2008) was stipulated in Article 24(5)11 of the Enforcement Decree prior to the entire amendment.