[1] Requirements for the application of the provisions of the Road Act to a road constructed by an urban planning project under the Urban Planning Act under Article 10 of the Road Act

[2] Whether the proviso of Article 65 (1) of the Road Act can be applied to road works implemented by a person other than a road management agency (affirmative)

[3] Whether the proviso of Article 65(1) of the Road Act preferentially applies to Article 51 of the Telecommunications Business Act or Article 43(1) of the former Electric Utility Act (affirmative)

[4] Whether the proviso of Article 65 (1) of the Road Act applies to the relocation cost of the former owner and the telecommunications owner in the private land other than the road for which occupancy charges are reduced or exempted (negative)

[1] In order to apply mutatis mutandis the provisions of Article 10 of the Road Act to roads established by urban planning projects under the Urban Planning Act under Article 10-2 of the Enforcement Decree of the Road Act, the procedures for the authorization and public announcement of the implementation plan of urban planning projects and the preparation of land protocols for land to be expropriated and used

[2] It is reasonable to view that the proviso of Article 65 (1) of the Road Act, which stipulates that a person whose occupation charges are reduced or exempted under Article 44 (3) of the Road Act shall bear the whole of the expenses of other construction required due to occupation and use, applies regardless of whether the road work executor is not the road management agency or

[3] The proviso of Article 65(1) of the Road Act shall be applied in preference to Article 51 of the Telecommunications Business Act or Article 43(1) of the former Electric Utility Act (wholly amended by Act No. 6283, Dec. 23, 2000) as to whether a person who has been granted reduction or exemption of fees for occupying and using a road bears the burden of expenses for other construction required due to occupation and use

[4] The expenses for relocation of poles and communications required for the execution of road works are, in principle, borne by the executor of road works under the main sentence of Article 65(1) and Article 70 of the Road Act. However, with respect to utility poles or communications carriers who are installed on the existing road whose occupation charges are reduced or exempted under the proviso of Article 65(1) of the Road Act under the proviso of Article 65(1) of the Road Act, a person who is exceptionally exempted from the occupation charges bears the relocation expenses. As such, the expenses for relocation of utility poles or communications poles installed on the part of the private land and the relocation expenses for utility poles or communications poles installed on the existing road are divided, and the person who is exempted from the occupation charges only for relocation expenses for utility poles or communications poles

[1] Article 10 of the Road Act; Article 10-2 of the Enforcement Decree of the Road Act / [2] Articles 40, 43, 44 subparagraph 3, and 65 (1) of the Road Act / [3] Article 65 (1) of the Road Act; Article 51 of the Telecommunications Business Act; Article 43 (1) of the former Electric Utility Act (wholly amended by Act No. 6283, Dec. 23, 2000; see Article 72 (1) of the current Act) / [4] Articles 31, 34, 44, 56, 65 (1), and 70 of the Road Act

[1] Supreme Court Decision 72Da787 delivered on April 9, 197 (Gong1974, 7835) Supreme Court Decision 76Da1836 delivered on April 26, 197, Supreme Court Decision 92Da1162 delivered on September 14, 1992 (Gong1992, 2861) / [2] Supreme Court Decision 99Da29978 delivered on December 26, 200 (Unpublished in Official Gazette) / [3] Supreme Court Decision 9Da72682 delivered on June 9, 200 (Unpublished in Official Gazette)

Korea Land Corporation (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Korea Electric Power Corporation and one other (Attorneys Kim Jong-he et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 97Na4257 delivered on April 16, 1999

The part of the judgment of the court below against the defendants shall be reversed, and that part of the case shall be remanded to the Gwangju High Court.

The defendants' grounds of appeal are also examined.

1. As to the application of the Urban Planning Act

According to the reasoning of the judgment below, the court below determined that Article 10 of the Road Act can apply mutatis mutandis to roads other than those under Article 2 of the same Act under the conditions as prescribed by the Presidential Decree, and accordingly, Article 10-2 of the Enforcement Decree of the same Act provides that Article 65 of the Road Act shall apply mutatis mutandis to roads installed under urban planning projects under the Urban Planning Act. Thus, the court below determined that the provisions of the Road Act cited by the court below to each of the

In order to apply mutatis mutandis the provisions of Article 10 of the Road Act to a road established as an urban planning project under the Urban Planning Act under Article 10-2 of the Enforcement Decree of the Road Act, the procedures for the authorization, public announcement, and the preparation of a land protocol for land to be expropriated and used (see, e.g., Supreme Court Decision 92Da1162, Sept. 14, 1992). According to the records, prior to the construction of each of the roads of this case, prior to the construction of each of the roads of this case, the defendants already opened the existing roads and installed the electric poles and telecommunication poles in the road site with the permission of occupation and use of the roads of this case, and the fact that the procedures for the authorization, public announcement, use, or the preparation of a land protocol for each of the roads of this case

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law in the incomplete deliberation or misunderstanding of legal principles as otherwise alleged in the ground of appeal, and the above judgment of the court below is not applicable to this case, and it contains the purport of rejecting the defendants' assertion that the plaintiff who is a project operator should bear the transfer cost pursuant to Articles 6, 23, and 62 of the Urban Planning Act, and the judgment of the court below is not subject to the proviso of Article 65 (1) of the Road Act. Thus, the ground of appeal by the defendant Korea Electric Power Corporation is without merit

2. As to the application of the proviso of Article 65(1) of the Road Act

It is reasonable to view that the proviso of Article 65(1) of the Road Act, which provides that a person whose occupation and use fees are reduced or exempted pursuant to Article 44 subparag. 3 of the Road Act shall bear the whole of the expenses of other construction required due to occupation and use, regardless of whether a road work executor is not a road management agency or a road management agency (see Supreme Court Decision 9Da29978, Dec. 26, 200).

Although the reasoning of the court below is inappropriate, in light of the above legal principles, the decision of the court below that the executor of each of the road works of this case should bear the incidental expenses incurred due to the occupation and use of the Defendants under the proviso of Article 65 (1) of the Road Act is just and there is no error of law such as incomplete deliberation or misunderstanding of legal principles, as otherwise alleged in the ground of appeal. The ground of appeal pointing this out is not acceptable.

3. For the application of Article 65(2) of the Road Act

According to the reasoning of the judgment below, the court below acknowledged the facts of the decision based on the employment evidence, and found that Article 65 (2) of the Road Act provides that if road works have become necessary due to other construction works or other acts, the provider of the cause may bear all or part of the expenses for such other construction works, and determined that each of the road works of this case has become necessary due to other construction works or other acts as provided in Article 64 of the Road Act, or that the use of the facilities of this case cannot be deemed to fall under the expenses for other construction as provided in Article 65 (2) of the Road Act.

In light of relevant evidence and records, such recognition and judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal. This part of the ground of appeal is not acceptable.

4. As to the application of Telecommunications Business Act and the Electric Utility Act

In this case, the issue is whether or not a person who has been exempted from occupation and use fees of a road bears the burden of expenses for other construction required due to occupation and use. Accordingly, the proviso of Article 65 (1) of the Road Act should be applied in preference to Article 51 of the Telecommunications Business Act or Article 43 (1) of the former Electric Utility Act (wholly amended by Act No. 6282 of Dec. 23, 2000). Thus, the court below's application of the proviso of Article 65 (1) of the Road Act to the same purport is just, and there is no error of incomplete deliberation or misapprehension of legal principles as pointed out in the grounds for appeal. The ground for appeal

5. As to the burden of removal of electric poles installed in private land

A. The judgment of the court below

According to the reasoning of the judgment below, as to the Defendants’ assertion that the Defendants were obligated to bear the costs of the installation of the facilities on the existing road only if the former owner or communications owner installed on the existing road were removed, and that the former owner or communications owner installed on the general privately owned land was not obligated to bear the costs of the installation of the facilities on the existing road, the lower court determined that the Defendants’ new installation of the facilities on the new site including 39 existing roads (the existing roads included on 1-15 and 1-22 lines) and 1-15 lines and 1-22 lines were removed from the existing site of the installation of the facilities on the ground that the former owner or telecommunications owner was not obligated to bear the costs of the installation of the new facilities on the new site of the former owner, and that the total costs of the installation of the facilities on the new site of the former owner, including 1-15 lines and 15 new installation of the facilities on the new site of the former owner of the road on the ground that the former owner had not been obligated to bear the costs of the construction on the new site.

B. Judgment of the Supreme Court

In principle, the expenses for relocation of obstacles, such as electric poles required to implement each of the instant road works shall be borne by the Plaintiff, who is the executor of the road works, in accordance with the main sentence of Article 65(1) and Article 70 of the Road Act. However, with respect to electric poles or radio poles installed on the existing road, the fees for occupation and use of which have been reduced under the proviso of Article 65(1) of the Road Act under the proviso of Article 44(3) of the Road Act, the Defendants shall bear the relocation expenses incurred due to occupation and use of each existing road exceptionally. Therefore, the lower court should have divided the relocation expenses for electric poles or telecommunication poles installed on the part of the private land and the relocation expenses for electric poles or telecommunication poles installed on the existing road.

Therefore, the court below's order the defendants to bear the burden on the private land other than the existing road by misunderstanding the legal principles of the proviso of Article 65 (1) of the Road Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

6. Therefore, the part of the judgment of the court below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)