Where a common telecommunications business operator requests a common telecommunications business operator to relocate the underground transmission of telecommunications lines installed in the electric poles and a processed cable line installed on a road as part of a street development project implemented by a local government to improve urban scenery, etc. under Article 51 of the former Telecommunications Business Act, and where the common telecommunications business operator requests a common telecommunications business operator to relocate the underground transmission of telecommunications lines installed in the electric poles, the principal who bears the cost required for relocation under Article 51(3

Article 51 of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Telecommunications Business Act”) provides a key telecommunications business operator with a duty to take necessary measures, such as the relocation of facilities, at the request of the owner or possessor of the land, etc. when the telecommunications equipment obstructs the use of the land, etc. due to the change of the purpose of use of the land, etc. or the method of use thereof, and grants a key telecommunications business operator the right to receive compensation from the person who provided the cause thereof. In other words, a key telecommunications business operator, by transferring existing telecommunications equipment and facilities, is obliged to satisfy the demands of the owner or possessor of the land, instead of claiming compensation to the person who provided the cause thereof (Article 72-2 of the Electric Utility Act, which was newly established by Act No. 1050, Mar. 30, 201).

In case where a local government implements the regionalization project of electric poles installed on the road as part of the street creation project implemented by the local government in order to improve the urban landscape, etc., and a key communications business operator demands a key communications business operator to relocate the underground transmission of communications lines installed on the electric poles, and the key communications business operator performs the relocation construction, the local government shall bear the expenses incurred in relocation pursuant to Article 51(3) of the former Telecommunications

Article 51 (see current Article 80) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010); Article 72-2 of the Electric Utility Act

Supreme Court Decision 2012Da60275 Decided November 14, 2013

C. C. C. C. C. C. H. (Law Firm Sp. Law Firm Sp., Attorneys Seo-ok et al., Counsel for defendant-appellant

Yangcheon-gu Seoul Metropolitan Government (Law Firm Lee & Lee LLC, Attorneys Park Jae-chul et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2016Na50622 decided November 24, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Ground of appeal No. 1

A. Where facilities installed by a common telecommunications business operator cause interference with the use of land, etc. due to a change in the purpose of use or the method of use of the land, etc. on which such facilities are installed, the owner or occupant of such land, etc. may request the common telecommunications business operator to relocate telecommunications equipment and facilities or to take other necessary measures for the removal of interference [Article 51(1) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Telecommunications Business Act”) (Article 51(1) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Act”). The common telecommunications business operator so demanded shall take necessary measures unless the relevant measure is deemed to have difficulty in performing his/her duties or technical difficulty (Article 5(2) of the same Act), and the expenses

The above provision imposes an obligation on a common telecommunications business operator to take necessary measures, such as the relocation of facilities, upon the request of the owner or possessor of the land, etc., when the telecommunications equipment obstructs the use of the land, etc. due to the change in the purpose of use or method of use of the land, etc., and grants the right to receive compensation from the person who provided the cause thereof. In other words, a common telecommunications business operator, instead of having a common telecommunications business operator liable to satisfy the demand of the owner or possessor of the land by moving the existing telecommunications equipment and facilities, etc., is allowed to claim compensation for the transfer cost, etc. from the person who provided the cause thereof (However, as Article 72-2 of the Electric Utility Act was newly established by Act No. 10500 on March 30, 201, if the head of a Si/Gun/Gu has requested the “electric telecommunications business operator” to transfer the electrical cable installed in the former, including the telecommunications equipment and facilities, in principle, the person who provided the installation of the electric lines, bears the relocation cost.

In the event that a local government implements a street development project as part of a street development project implemented by a local government to improve urban scenery and the underground transmission project for processing cables and a key telecommunications business operator requests a key telecommunications business operator to relocate underground transmission lines installed in the electric poles and the key telecommunications business operator performs relocation construction, the local government bears the expenses incurred in relocation pursuant to Article 51(3) of the former Telecommunications Business Act (see Supreme Court Decision 2012Da60275, Nov. 14, 2013, etc.).

B. According to the reasoning of the lower judgment, the following facts are revealed. ① The Plaintiff, as a key telecommunications business operator under the Telecommunications Business Act, was granted permission to occupy and use the electric poles and cable lines in the New Month of Yangcheon-gu Seoul, and provided telecommunications services, such as super-high speed Internet and cable broadcasting, by separately leasing the electric poles and cable lines from the Korea Electric Power Corporation, which installed and owned the electric poles and cable lines. ② From 2008, the Defendant, as part of the said development project, carried out the “New Design Seoul Road Construction Project” project, which integrated new months with the centering on Gu residents, and promoted the project of undergroundizing the electric poles, electric wires, and cable lines installed in the 620 square meters area of the instant road as part of the said development project. ③ On July 2009, the Plaintiff, at the Defendant’s request, moved the construction cost to underground the electric poles and cable lines installed on the electric poles located on the instant road (hereinafter “instant communications line”).

Based on the above factual basis, the lower court determined that the Defendant, who caused the Plaintiff’s relocation of the instant communications line to the Plaintiff, constitutes a person who incurred necessary measures, such as relocation of facilities and equipment prescribed by the main sentence of Article 51(3) of the former Telecommunications Business Act.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court’s determination that the Defendant, as the principal agent of the broadband project, demanded the broadband of the instant communications line, constitutes a cause provider as referred to in the main sentence of Article 51(3) of the former Telecommunications Business Act is justifiable. The Korea Electric Power Corporation, as an electricity supplier under the Electric Utility Act, has moved its ownership and processing cable to the underground base station pursuant to a separate agreement concluded with the Defendant, and thus, cannot be deemed as a person who incurred the Plaintiff’s underground base station relocation. Therefore, the lower court did not err by misapprehending the legal doctrine on the subject of cost-bearing under the former Telecommunications Business Act without exhaust all necessary deliberations

2. The second ground for appeal

The lower court determined that the agreement entered into between the Plaintiff and the Korea Electric Power Corporation cannot be a legal cause for the Plaintiff to pay and bear the expenses incurred in moving the underground, on the grounds that it is difficult to view that the Plaintiff agreed to pay the expenses incurred in moving the underground communications line with the Korea Electric Power Corporation.

Examining the evidence submitted by the Plaintiff in light of the reasoning of the lower judgment, it is difficult to view that the Plaintiff expressed his intent to bear the expenses incurred in relation to the relocation of the land that the Defendant should bear under the former Telecommunications Business Act, and thus, the lower court’s determination that the Plaintiff constituted unjust enrichment regarding the expenses incurred in relocation of the land that the Plaintiff incurred is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent

3. Conclusion

The Defendant’s appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)