Standard for determining whether the “surgical map” under Article 6 subparag. 7 of the Regulations on Connection with Roads to other Roads, etc. falls under a section of which permission for connection with other roads, etc. is prohibited.

Article 64 of the Road Act provides that "the regulations on the connection between roads and other roads, etc., which provide for the permission criteria, permission procedures, installation standards, etc. when connecting roads to other roads, passage or other facilities shall not be permitted under subparagraph 7 of Article 6 of the Road Act, "the sections where residents' convenience facilities, such as bus stops, side roads, etc., are installed and cannot be used or relocated, may cause danger to residents' passage." Thus, the purpose of installing a course map on the side of the national highways is to enhance convenience of village residents' passage and the convenience and safety of the main national highways by preventing immediately from immediately entering the national highways into the national highways. Thus, when determining whether the connection permission is prohibited due to the side roads, it shall be based on whether the function of the main road is likely to be impeded due to the connection of the road.

Article 64 of the Road Act and Article 6 subparagraph 7 of the Rules on Connection with Roads, etc.

Plaintiff (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Ansan Market (Law Firm Subdivision, Attorneys Yoon Jung-tae et al., Counsel for the plaintiff-appellant)

The Intervenor joining the Defendant (Law Firm Osis, Attorneys Lee Yong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu33800 decided April 27, 2012

The appeal is dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

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

1. Permission for the construction, etc. of a building within a development-restricted zone is beneficial to the other party, and is deemed to belong to an administrative agency’s discretionary act. However, if an administrative agency’s judgment is erroneous, such as misconception of facts, violation of the principle of proportionality and equality, and violation of purpose, etc., it constitutes an abuse of discretionary authority (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

Meanwhile, Article 64 of the Road Act provides that "the regulations on the connection between roads and other roads (hereinafter referred to as "road connection regulations") with the permission criteria, permission procedures, installation standards, etc. in cases where linking roads to other roads, passages, or other facilities shall not be permitted under Article 64 of the Road Act (hereinafter referred to as "road connection regulations") provides that "the sections where residents' convenience facilities, such as bus stops and side roads, are installed and cannot be relocated or relocated, among general national roads, which might cause danger to the passage of residents," and that "the purpose of construction of the road on the side of the national road is to enhance convenience and safety of the main line of the national road by preventing the immediate access of the land adjacent to the national road by making it possible for village residents to immediately enter the national road from the convenience of passage of village residents, and the passage of the main line of the national road, and in determining whether the connection permission is prohibited due to the side roads, it shall be based on the possibility that the function of such road connection may be impeded.

2. A. According to the reasoning of the judgment below, the court below acknowledged the following facts: ① on April 20, 2010, the defendant applied for the determination of the priority holder of gas stations (hereinafter “instant application site”) on May 12, 2010 with the land located within the instant road section as the site where the defendant applied for the determination of priority holder of gas stations; ② Article 6 subparag. 6 of the Ordinance on Connection with Roads, etc. (hereinafter “The Ordinance on Connection with Roads, etc.”) stipulating the prohibition of road connections as one of the prohibited sections of Article 6 subparag. 7 of the Road Linking Rules (hereinafter “the Ordinance on Connection with Roads, etc.”) that “the residents cannot install convenience facilities, such as the connected road section, or the residents cannot move to the road section to another area, or there is danger of removal from the road section (hereinafter “the above Ordinance”).

Furthermore, on the following grounds, the lower court determined that the instant disposition was unlawful due to misunderstanding of facts or misunderstanding of legal principles, by deviating from and abusing discretion.

① At the location of the instant application, multiple industrial roads and a map of 5.5 meters wide (hereinafter “instant side map”) are set up in parallel with several industrial roads. Even if a temporary and continuous lane is installed to enter and depart from the instant application site (hereinafter “instant temporary and continuous lane”), even if there is no need to change any particular physical change on the side of the instant case, it appears that the degree would be very small. In the ruling of the Gyeonggi-do Administrative Appeals Commission, even if the instant provisional and continuous road is installed, it is premised on the premise that the instant side road does not infringe on the site, but rather cross-sections.

② In the vicinity of the instant application site, farmland on 14 lots for farmland cultivation, subdivision, landscaping, the Korea Gas Corporation’s radius supply control office, and the Korea Electric Power Corporation’s Korea Electric Power Corporation’s one-time transformation station, and in order to have access to this area, the instant map should be used. The average daily visit vehicle is less than one unit of the said substation, and the foregoing half-month supply control office was 2.1 unit, and the traffic volume of the residents or vehicles using the instant map is too large.

③ If the instant virtual road is installed in the section of the instant application site, it is not only possible to improve the traffic safety level surrounding the instant application site, but also, as seen earlier, it seems possible to fully cope with the risks that may arise from the intersection by installing traffic safety facilities in the instant virtual/speed road and the instant transmission road at the intersection.

④ On the ground that the instant lane is installed, there is no inconvenience for access to farmland, the said substation, and the above half-month supply management office around the instant application site.

⑤ In full view of these circumstances, even if the instant provisional and continuous road is installed on the instant road section among the instant road section, it cannot be deemed that the instant provisional and continuous road section could impair the function of the instant latitude, interfere with the passage of neighboring roads, or go beyond the existing level for the passage of neighboring residents, and thus, it cannot be said that there is a need to re-establish the instant provisional and continuous road section due to the construction of the instant provisional and continuous road section. Accordingly, the instant site section among the instant road section cannot be deemed to constitute the prohibited section for road connection permission under Article 6 subparag. 6 of the Ordinance on Road Connection in Ansan-si.

B. In light of the above legal principles, the above determination by the court below is just, and there are no errors in the misapprehension of legal principles as to the prohibited section of road connection permission under Article 6 subparagraph 7 of the Road Connection Rule or Article 6 subparagraph 6 of the Ordinance on Road Connection in Ansan-si, Ansan-si, the defendant did not give any specific answer as to whether the construction of the road of this case obstructs the function of the map of this case or obstructs neighboring road traffic or causes new danger beyond the existing level to neighboring residents' passage, in addition to the above circumstances as seen by the court below.

3. Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne by the Intervenor joining the Defendant, and the remainder shall be borne by the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)