New Petroleum Co., Ltd

The head of Yangcheon-gu Seoul Metropolitan Government

May 25, 2012

Seoul Administrative Court Decision 201Guhap25302 decided November 11, 2011

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposing road occupation fees of KRW 4,928,800 against the Plaintiff on March 4, 2011 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, operating a gas station (hereinafter “instant gas station”) in Yangcheon-gu Seoul Metropolitan Government (Land Number 1 omitted), uses the road of 48.8 square meters in front of the instant gas station (hereinafter “instant road”) as an entrance and exit for the instant vehicle to enter the gas station. The specific status of the site of the instant gas station, which is the road of this case and the land adjoining the road, is as follows.

The land category (m2) the officially assessed individual land price (f2), lot number (f2) the officially assessed individual land price (H2 omitted) shall be 48.8.81,700,000 (number 1 omitted) the new-dong, Yangcheon-gu, Seoul Metropolitan Government (number 2 omitted) site for the gas station in this case, located within the boundary of the head of the Dong. 5,050,000

B. On March 4, 2011, pursuant to Article 41 of the Road Act and Article 42(1) [Attachment Table 2] of the Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sept. 17, 2010; hereinafter “amended Enforcement Decree”), the Defendant issued a disposition imposing the Plaintiff the instant gas station site by multiplying the area occupied by the road (48.8 square meters) of the instant site by the officially assessed land price of the instant gas station (5,050,000 square meters) and the annual occupancy fee rate (02) from January 1, 2011 to December 31, 2011 (hereinafter “instant disposition”).

[Grounds for recognition] The fact that there is no dispute, Gap's 1 or 3 evidence (ad hoc number omitted), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the instant road is not a national highway, the instant disposition is unlawful since it is subject to the Yangcheon-gu Seoul Metropolitan Government Ordinance on Permission to Occupy and Use and Collection of Occupancy Charges, etc. (amended by Ordinance No. 1016, Dec. 20, 201; hereinafter “former Yangcheon-gu Ordinance”), the criteria for the amended Enforcement Decree beyond the scope of the standards for occupation and use fees under the Yangcheon-gu Seoul Metropolitan Government Ordinance were applied.

2) The amendment of the amended Enforcement Decree to the “Adjoining land” which is the basis for calculating occupation and use fees to the “land adjoining the road occupation and use area” is clearly contrary to the purport of the Supreme Court Decision 2009Du12730 Decided February 11, 2010. This is unlawful as it was amended to the extent that the judicial decision on the calculation of road occupation and use fees is intentionally avoided, and the road occupation and use fees calculated under the amended Enforcement Decree violates the Plaintiff’s property right due to excessive infringement. Therefore, the above provision of the Enforcement Decree is unconstitutional.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 42(1) [Attachment 2] of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sep. 17, 2010); Article 3 [Attachment 1] of the Yangcheon-gu Ordinance provides that the officially assessed individual land price of the adjoining land shall be the basis for the calculation of road occupation and use fees. Here, “a adjoining land” refers to land in the vicinity of the occupation and use road, which is used for the same or similar purpose as the main usage of the road (see, e.g., Supreme Court Decisions 2009Du12730, Feb. 11, 2010; 2002Du5344, Nov. 8, 2002).

(2) However, after the above Supreme Court’s decision was rendered, the amended Enforcement Decree changed the officially assessed individual land price of “land (excluding road sites) abutting on road occupation and use parts” as the basis for calculating road occupation and use fees, and on December 20, 2011, the Yangcheon-gu Ordinance was also amended to the same effect as the Enforcement Decree of the amended Act.

(3) Article 41(2) of the Road Act provides that “The matters necessary for the collection of occupation and use fees, such as the standards for calculating occupation and use fees, shall be determined by the Presidential Decree for national highways and by the Municipal Ordinance of the local government to which the road management authority belongs, within the scope prescribed by the Presidential Decree.” Article 42(2) of the amended Enforcement Decree provides that “The standards for calculating occupation and use fees for local governments shall be determined by the Municipal Ordinance of the relevant local government within the scope of the standards for calculating occupation and use fees under the attached Table 2.” Since the instant road is not a national highway managed by the Defendant, it is not a road, the occupation and

(4) In light of the above legal principles, the site of gas station in this case cannot be deemed as being used for the same or similar purpose as the main purpose of the road in this case. Thus, the standard land for calculating the occupation and use fees of the road in this case cannot be the land. Therefore, the disposition of this case, which set the site of gas station in this case as the land for calculating the occupation and use fees of the road in this case, was unlawful without any need to further determine the remainder of the Plaintiff’s assertion.

3. Conclusion

If so, the plaintiff's claim should be accepted because it is reasonable. Since the judgment of the court of first instance differs from this conclusion, it is unfair to accept the plaintiff's appeal and revoke it, and it is so decided as per Disposition with the decision to revoke the disposition of this case.

[Attachment Form 5]

Judges Kim Chang-chul (Presiding Judge) and Yang Chang-chul