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(영문) 대법원 2019.10.17 2018두104
도로점용허가처분무효확인등
Text

All appeals are dismissed.

The costs of appeal are assessed against Defendant Intervenor, and the remainder are assessed against Defendant Intervenor.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the permission to occupy and use the road of this case is subject to resident litigation

A. According to Article 8(2) of the Administrative Litigation Act and the latter part of Article 436(2) of the Civil Procedure Act, the court to which the case was remanded or transferred shall be bound by the court of final appeal’s factual and legal judgment based on the reversal of the case.

Therefore, the lower court did not err by misapprehending the legal nature of permission to occupy and use the instant road and legal principles on the subject matter of resident lawsuits, contrary to what is alleged in the grounds of appeal, on the premise that the instant disposition constitutes “matters concerning the management and disposal of property” under Article 17(2) of the Local Autonomy Act, according to the binding force of the judgment on the reversal and transmission of the judgment rendered on May 27, 2016.

B. Article 17(1) of the Local Autonomy Act provides that the residents who requested the inspection of “matters concerning the acquisition, management, and disposal of property” may bring a lawsuit against the head of the pertinent local government with regard to the fact that they neglected to perform illegal acts or duties related to the matters requested for inspection, and does not limit the subject matter of a resident lawsuit to the matters concerning “acquisition, management, and disposal of property which causes damages to local government finance.”

Therefore, the allegation in the grounds of appeal that the instant permission to occupy and use the road does not cause damage to local finance and thus is not subject to residents' lawsuit is rejected because it is inconsistent with the clear text of the above Local Autonomy Act stipulating the subject of residents' lawsuit

2. The lower court determined that the Plaintiffs filed a resident inspection request on December 7, 201, which was within two years from April 9, 201, when the Defendant issued the instant permission to occupy and use the road, and accordingly, complied with the period of filing a resident inspection request under Article 16(2) of the Local Autonomy Act, and the Mayor of Seoul Special Metropolitan City.

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