(영문) 수원고등법원 2021.6.18. 선고 2020누12151 판결

On June 8, 1993, the defendant (the defendant, hereinafter referred to as the "defendant") confirmed that the permission disposition of opening a private building on each real estate listed in the separate sheet against the non-party F on June 8, 1993 is invalid.

2. Purport and purport of request for retrial

The judgment of the first instance court and the decision subject to a retrial shall be revoked. The plaintiff's claim (the defendant for a retrial, and hereinafter referred to as "the plaintiff") is dismissed.

Reasons

1. Determination of the original judgment

A. G: (a) around 2015, G: (b) around 2015, H-2 (hereinafter “H”); (c) around 20-4 3-4 Miscellaneous land; (d) KRW 369 square meters of H-I cemetery land; and (e) KRW 1,983 square meters of H-I cemetery land; and (e) each real estate listed in the real estate list (hereinafter “the instant access road” is referred to as “the instant access road”. The instant access road form is the same as indicated in Appendix 2.); (e) the Plaintiff, the owner of 29 square meters of J. 29 square meters of land (attached Form 1.1. Ownership of real estate indicated in the list of real estate and paragraph (2) of G-2; and (e) the Plaintiff, the owner of the above 29 square meters of land under the Private Road Act, was unable to obtain a new judgment on the ground that there was insufficient evidence to acknowledge that the portion of the instant access road was an access road to G-216/327/1/6/37).

B. On December 10, 2018, the Plaintiff filed a lawsuit against the Defendant on June 8, 1993, seeking confirmation of invalidity of the permission to open a private road (hereinafter referred to as “instant disposition”) issued by Suwon District Court MU on the part of the Defendant on the part of June 8, 2013. On June 13, 2019, the instant disposition from the above court did not apply the former Private Road Act (amended by Act No. 5454, Dec. 13, 1997; hereinafter the following) to the roads for use within 5 units of the road. However, there was a defect in the instant disposition pursuant to Article 4 of the former Private Road Act, and the judgment for retrial was completely invalidated due to a violation of the proviso to Article 3 of the former Private Road Act and Article 11 of the former Enforcement Decree of the Private Road Act (amended by Presidential Decree No. 1855, May 31, 2005; hereinafter the same).

[Grounds for Recognition: Evidence Nos. 1, 2, 5, Evidence Nos. 10, 14 through 18 (including additional numbers), remarkable facts in this Court, and the purport of the whole pleadings]

2. The legality of request for retrial;

A. Relevant provisions

Article 12 of the Administrative Litigation Act provides that "an action for revocation may be brought by a person who has a legal interest in seeking the revocation of a disposition, etc." and Article 31 provides that "a third party whose right or interest has been infringed by a judgment revoking a disposition, etc. fails to participate in a lawsuit for the reason that he/she is not responsible to him/her and thus fails to submit the means of offence or defense that may affect the result of the judgment, he/she may make a request for re-adjudication of the final judgment which has become final and conclusive on such ground." (Article 12), "The claim under paragraph (1) shall be made within 30 days after the final and conclusive judgment becomes known, and within one year after the final and conclusive judgment becomes final and conclusive (Article 2)."

(b) Eligibility for the plaintiff;

In full view of the purport of the arguments in the evidence Nos. 4 through 6, 9, 11 through 18, 23 through 27 (including provisional numbers) of Byung, K used the access roads and J roads as the passage of the plaintiff from around 2003 to N while operating a factory in N. The plaintiff D used the access roads and J roads for the construction of O factories, and the plaintiff E used the access roads and J roads for the construction of Q factories, respectively. Since around 2018, K permits the passage of each land and J roads from around 2018 to the rest of the re-examination, and the plaintiff cannot recognize the fact that the re-examination obstructs the passage of the plaintiff by installing the steel pent, etc. on the access roads in this case from July 5, 2019 after the decision for re-examination became final to be determined.

According to Article 6 of the former Private Road Act, since a person who has established a private road does not restrict or prohibit the passage of the general public to the private road without the provisions of Article 7 of the former Private Road Act, the plaintiff who has established the private road shall be deemed to have the right or interest to use the private road of this case as the passage of the road of this case on the basis of the disposition of this case. However, due to the ruling of retrial, the disposition of this case becomes null and void automatically and retroactively loses its validity, and thus, the plaintiff of this case constitutes a third party whose right or interest was infringed by the ruling of retrial.

C. Whether there is a ground for retrial

In full view of the purport of the arguments in the evidence Nos. 8 and 19, the Plaintiff’s notification to the Plaintiff on July 3, 2019, which became final and conclusive after the judgment for retrial became final and conclusive, and there is no counter-proof, the Plaintiff did not know that the case subject to retrial continues to exist before receiving such notification, and there was no negligence on the part of the Plaintiff. Since the access road does not constitute a road for use within 5 days after filing the instant request for reexamination, the instant disposition is lawful. Even if the access road falls under a road for use within 5 days, the instant disposition is based on the proviso to Article 3 of the former Private Road Act, and even if the access road falls under a road for use within 5 days, the instant disposition is based on the procedural defect of the notice defect under Article 1 of the Enforcement Decree of the former Private Road Act, which alone asserts that the instant disposition does not constitute an invalidation. Accordingly, the Plaintiff was unable to participate in the case subject to reexamination due to a cause not responsible, thereby failing to submit any means of attack or defense affecting the outcome of the judgment.

(d) Whether the period for filing a lawsuit is observed;

On July 3, 2019, after the decision for review became final and conclusive, the Plaintiff notified the Plaintiff of the pronouncement and confirmation of the decision for review. It is clear in the record that the instant request for review was filed on July 31, 2019, within 30 days from that time. As such, the Plaintiff for review complied with the filing period of the request for review.

3. Whether the disposition of this case is void automatically

(a) Details of the disposition;

1) F applied for permission to open a private road to create a stable from H 13-3 via local roads R, S, and T in order. On June 8, 1993, the Defendant applied for permission to open a private road to F on the condition that F may not restrict or prohibit the passage of related residents after installation of a private road, and that F shall obtain prior permission at the time of such restriction or prohibition, pursuant to Article 4 of the former Private Road Act and Article 2 of the former Enforcement Decree of the Private Road Act, the instant disposition was taken on the condition that it shall be 160 meters in length, 8 meters in width, 1,939 square meters in width, road size, 1,939 square meters in size, and a stable for each type of road.

2) After completing construction for opening a private road, F was notified by the Defendant of the completion of construction of a private road on February 21, 1995.

3) A part of U among U on March 30, 1995 is divided into a 302m square meters, and land category was changed to a road, and real estate listed in attached Table 1. A real estate was registered in attached Table 1. The part of HV is divided into a part of HV, and only the part of HV is 179m square meters, which remains in W road 179m square meters, and real estate listed in attached Table 1. A real estate was registered in attached Table 1, and H T was registered for H T to Y and Z. The YY was divided into a X 537m square meters of land for a X 537m square meters on September 29, 2008 and real estate listed in attached Table 1.

4) The real estate listed in [Attachment 1. List 1.2] was owned by the Plaintiff’s father AA. The Plaintiff completed the registration of transfer on January 11, 1995 as to the real estate listed in [Attachment 1.2] List 1. The Plaintiff completed the registration of transfer on December 10, 1984 on the ground of donation, and on February 11, 1998 as to 140/30 of the real estate listed in [Attachment 1.1] List 1. on February 11, 1998, on the ground of donation on February 10, 1998.

5) Of the real estate listed in attached Table 1. 1. The real estate listed in attached Table 1. 1. 3/302 among the real estate listed in the real estate list No. 1 and attached Form 1. 3, the ownership transfer registration was completed on May 11, 1995 to F, and on April 9, 198 to AB on May 31, 2001 to K for Review on April 30, 2001.

[Ground for Recognition: Facts without a partial dispute, Gap's statements in Gap's Evidence Nos. 1, 2, 4 through 9, Byung's Evidence No. 3, 4, 14 through 18 (including provisional numbers), the purport of the whole pleadings]

B. The parties' assertion

1) Plaintiff

According to the main sentence of Article 3 of the former Private Road Act, even though the instant access road for use within 5 units is not subject to the former Private Road Act, the Defendant issued the instant disposition based on the former Private Road Act. Even if the former Private Road Act applies to the instant access road pursuant to the proviso to Article 3 of the former Private Road Act, the Defendant did not make a public announcement thereof pursuant to Article 1 of the former Enforcement Decree of the Private Road Act, but the Defendant omitted it. The instant disposition has the foregoing defects, and the defect is significant and obvious, thus null and void.

2) Defendant

The instant disposition is legitimate based on the proviso to Article 3 of the former Private Road Act, and the defect of omission in the notification under Article 1 of the former Enforcement Decree of the Private Road Act cannot be deemed to be null and void as a matter of course.

3) Reopening Plaintiffs

Since the access road of this case does not constitute a road for use within 5 units, the instant disposition is lawful. Even if the access road of this case constitutes a road for use within 5 units, the instant disposition is based on the proviso of Article 3 of the former Enforcement Decree of the Private Road Act, and the procedural defect of the defect in the public notice under Article 1 of the former Enforcement Decree of the Private Road Act does not necessarily constitute the invalidation of the instant disposition.

C. Relevant statutes

Attached Form 3. The entry in the relevant statutes is as follows.

D. Determination

1) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law, and it is required to examine the purpose, meaning, function, etc. of the law from a teleological perspective in determining whether the defect is significant and obvious (see, e.g., Supreme Court Decision 2009Du2825, Sept. 24, 2009). In an administrative litigation seeking the invalidity of an administrative disposition on the ground that the administrative disposition is void as a matter of course, the Plaintiff is liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decision 2009Du3460, May 13, 2010).

2) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 18 through 20, and 37 (including virtual numbers), the access road at the time of the instant disposition can be acknowledged that there was no house or other structure around the access road at the time of the instant disposition, and there is no counter-proof. Thus, the access road at issue constitutes a road for use within 5 hours at the time of the instant disposition.

In the instant disposition, the Defendant specified only Article 4 of the former Private Road Act and Article 2 of the former Enforcement Decree of the Private Road Act as a ground provision, and did not specify the proviso to Article 3 of the former Private Road Act and Article 1 of the former Enforcement Decree of the Private Road Act. However, the proviso to Article 3 of the former Private Road Act is merely a ground provision for the application of the former Private Road Act, and it cannot be deemed as not applying the proviso to Article 3 of the former Private Road Act because it was not a ground provision for the permission to open the private road. As seen earlier, as long as it is obvious that the instant access road was offered for use within 5 days at the time of the instant disposition, the Defendant deemed it necessary to apply the former Private Road Act to the access road pursuant to the proviso to Article 3 of the former Private Road Act, and it is reasonable to deem that the instant disposition was based on the proviso to Article 3 and Article 4 of the former Private Road Act.

Thus, the defendant should have announced the disposition of this case under Article 1 of the former Enforcement Decree of the Private Road Act. However, for the purpose of construction of roads that can be used safely and conveniently by the people and improvement of public welfare, the Minister of Land, Infrastructure and Transport, Special Metropolitan City Mayor, Metropolitan City Mayor, Do Governor, Special Self-Governing Province Governor, and head of a Si/Gun, etc., explicitly stipulate the Road Act that the road management agency may expropriate or use the ownership of land in the road zone, and if the road route is designated and publicly announced under the Road Act, it may infringe on or limit the property rights against the owner's will due to various acts such as construction of buildings, etc. However, in the case of private roads subject to regulation of the former Private Road Act, if a person who intends to build a private road for personal necessity submits an application for permission to the head of the competent Si/Gun (the head of the competent Si/Gun is required to attach documents proving his/her authority if he/she intends to use land belonging to another person, such as the road of this case, and there is no specific provision regarding the public announcement or prohibition of construction of the previous private road.

4. Conclusion

Therefore, the judgment of the first instance court is revoked because there is a ground for retrial, and the plaintiff's claim should be dismissed as there is no ground for retrial. Since the judgment of the first instance is unfair with different conclusions, the judgment of the first instance court is revoked and the plaintiff's claim is dismissed