(영문) 서울행정법원 2017.1.13.선고 2016구합4645 판결

3. The costs of the lawsuit, including the costs incurred by the supplementary participation, are assessed against the Plaintiffs, and the remainder is assessed against the Defendant and the Intervenor, respectively.

Purport of claim

1. On April 9, 2010, the Defendant primarily filed against the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”).

It is confirmed that the disposition of permission to occupy and use a road is invalid. In addition, it is stated in Paragraph 1 of this Article

2. As to the disposition of permission to occupy and use the road mentioned in paragraph (1), the Defendant including the above ○○ and the roof ○○

Action for damages against public officials and intervenors of Seocho-gu Seoul Metropolitan Government Office who participated in the disposition;

Hadar Hadar

Reasons

1. Details of the disposition;

A. On June 1, 2009, the intervenor purchased 6,861.2 meters from the Seocho-gu Seoul Metropolitan Government Seocho-gu Special Planning Zone II land in the Seocho-gu (Seo Village Area) Station, which was designated as a district unit planning zone at the time of the time of the construction of the church building. On February 4, 2010, the Seoul Special Metropolitan City Mayor decided and publicly announced the Seocho-gu Special Drawing Zone II Special Drawing Zone (Detailed Development Area) by the Intervenor’s proposal to modify the district unit planning plan.

B. During the process of promoting the construction of a church building on the site B of the special planning zone purchased as above, the intervenor constructed a passage for entering the underground parking lot on the ground of the Seocho-gu Seoul Metropolitan Government, which is a national map owned by Seocho-gu, Seoul Metropolitan Government, as the roads along the above district unit change plan was set as a vehicle entrance prohibition section, along with the said district unit change plan, which is linked to the site of the above church building. On March 3, 2010, the intervenor applied to the Defendant for permission to occupy and use the above part of the road underground for the purpose of using it as a part of the distribution facility constructed on the underground space of the above building site.

C. Accordingly, on April 9, 2010, the Defendant issued a permit to occupy and use a road with a width of 7 metersx of 154 meters in length (hereinafter “instant underground part”) from April 9, 2010 to December 31, 2019 by attaching an additional pipe to contribute the 325 square meters of the south underground floor among new churches buildings to a childcare center (hereinafter “instant permit to occupy and use the road”) to enable the Intervenor to occupy and use the road from April 9, 2010 to December 31, 2019, including the four meters in width, which is to be expanded by the Intervenor in accordance with the district unit plan, and the main contents are as follows.

Licensed matters shall be permitted.

1. Place of occupation: Seocho-gu Seoul Metropolitan Government OOO-O roads ( underground);

2. Occupancy area: 1,077 square meters;

3. Purposes of occupation and use: Conditions of permission of an underground room.

5. Where the occupancy and use period expires or the permission for disuse or use is revoked, the road shall be restored at the expense of the person who has obtained permission, and the indemnity shall be paid until it is restored: Provided, That this shall not apply where it is impossible or inappropriate to restore it;

6. After the period of occupation and use expires, it shall be restored to the original state at the expense of the applicant.

11. A person who has obtained permission shall assume all civil and criminal responsibilities arising in connection with the occupation and use of a road.

D. After the permission to occupy and use the road of this case, the intervenor installed the following facilities: (a) from the first to the fifth underground of the underground floor of the new church building of this case, including the road of this case; (b) facilities such as a video exhibition room; (c) a teaching room; (d) a sexual substitute room; and (c) a parking lot from the sixth to the eight underground floors; (d) a mechanical room; and (e) a warehouse, etc. (hereinafter referred to as “the instant towing distribution, etc. of this case” from the eighth underground to the eight underground floors; and (e) the defendant received occupancy charges (hereinafter referred to as “the instant towing distribution, etc.”) pursuant to the Road Act and the Seoul Special Metropolitan City Ordinance during the period of the intervenor’s occupation and use, 138,614,00, 200, 184, 819, 00, 235, 200, 200, 2013: 36, 46, 2014

E. The Plaintiffs filed a lawsuit seeking revocation of the disposition of permission to occupy and use a road under this Court 2012-Gu 28797, and filed a lawsuit seeking revocation of the said disposition in addition to each of the claims stated in the above purport of the claim.

7. 9. A judgment of dismissal was rendered on May 15, 2014, and the appeal was lodged against the above judgment, but the Seoul High Court Decision 2013Nu21030 was rendered on May 15, 2014. Accordingly, the Plaintiffs appealed by Supreme Court Decision 2014Du8490, the Supreme Court dismissed the appeal on May 27, 2016 on the grounds that there is no specific ground for appeal as to this part of the petition for appeal or the appellate brief, and the Supreme Court rendered a judgment dismissing the remainder and remanded to this Court on the ground that the appellate brief or the appellate brief did not contain any specific ground for appeal as to this part. Accordingly, the part of the claim for revocation of the above building permit is final and conclusive by the Supreme Court’s

[Ground of recognition] Unsatisfy, Gap evidence 1, 4, 5, Gap evidence 7-1, 2, Gap evidence 8-1 through 3, Gap evidence 9-1, 2, Gap evidence 14, 22, Eul evidence 11, Eul evidence 11, and Eul evidence 2. The plaintiffs' assertion

A. The plaintiffs are not included in the concept of " underground room" subject to permission to occupy and use the road of this case, but it is later impossible to store new public facilities due to the permission to occupy and use the road of this case, and the permission to occupy and use the road of this case is to secure facilities for private use, so it is obviously contrary to the principle of proportionality and is in violation of the principle of separation of religion and state and equality.

The plaintiffs seek revocation of the permission to occupy and use the road of this case, as the defects are significant and apparent around the ground mentioned above.

B. In relation to the permission to occupy and use the road of this case, the Defendant is obligated to file a lawsuit against the public officials of Seocho-gu Seoul Metropolitan Government Office and the Intervenor who participated in the above disposition, including gambling ○○ and rooftop ○○, etc.

3. Determination

(a) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

B. Determination as to the claim for confirmation of invalidity of permission to occupy and use the road of this case (the main claim)

In order for an administrative disposition to become void as a matter of course, it is insufficient to say that there is an illegal cause, and the defect is a serious violation of the important part of the law, and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decisions 94Nu4615, Jul. 11, 1995; 2001Du4566, Dec. 10, 2002).

In addition, even if the defect existing in an administrative disposition is serious, if it is not objectively clear in appearance, such disposition cannot be deemed null and void. Thus, in case where an administrative agency has taken an administrative disposition by applying a provision of a law to certain legal relations or factual relations, the legal principles clearly stating that the provision of a law cannot be applied to such legal relations or factual relations, and even if there is no room for dispute over the interpretation thereof, if the administrative agency has taken the disposition by applying the above provision, it shall be deemed that the defect is significant and obvious. However, the legal principles that the provision of a law cannot be applied to such

If there is room for doubt, even if an administrative disposition was taken by a wrong interpretation of the administrative disposition, it is merely a misunderstanding of the fact of the disposition requirements, and thus, it cannot be said that the defect is evident. In addition, the administrative disposition was taken against a person who has no legal relation or

If there is an objective reason to believe that any legal relation or fact that is not subject to an administrative disposition is subject to such disposition, and it can only be identified whether it is subject to such disposition or not, and it is obvious whether it is subject to such disposition or not, even though it is serious defect, it cannot be said that it is obvious to be appearance even if it is serious defect (see Supreme Court Decision 95Da46722 delivered on May 9, 197, etc.).

In the instant case, the Defendant: (a) recognized that the instant road is not in danger of the safety of road structure and traffic; and (b) granted the instant permission to occupy and use the road to the intervenors; and (c) as seen below, even if the said permission was unlawful, it can be found that the defect is apparent only when the legal relation or factual relation is accurately examined; and therefore, (b) it cannot be deemed that the defect is apparent, and therefore, it cannot be said that the Plaintiffs’ primary argument is without merit.

C. Determination on the claim for revocation of permission to occupy and use the road of this case (preliminary claim)

1) First of all, we examine whether the instant towing dividend, etc. falls under “the underground room” for the purpose of occupation and use of the instant road occupation and use permit.

According to Article 28 (5) 5 of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sep. 17, 2010; hereinafter referred to as the "former Enforcement Decree of the Road Act"), "in the form of structures, goods, and other facilities for which permission to occupy and use a road can be granted," the underground upper price is "a , underground room, passage, overpasses, and others similar thereto."

Article 28(5) of the former Enforcement Decree of the Road Act provides that the term “the term “the term “the term “the term “the term “the term” means “the term “the term “the term” under Article 28(5)5 of the former Enforcement Decree of the Road Act, and the term “the term “the term “the term “the term” under Article 28(5)5 of the former Enforcement Decree of the same Act means the term “the term “the term “the term” under Article 28(5)5 of the former Enforcement Decree of the Road Act, and the term “the term “the term “the term “the term” under Article 28(5)5 of the former Enforcement Decree of the Road Act” means the term “the term “the term “the term “the term “the term” under Article 28(5)5 of the former Enforcement Decree of the Road Act” under Article 28(2) of the former Enforcement Decree of the Building Act, which is the term “the term “the term “the term “the term “the term” under Article 28(5)” under the former Enforcement Decree of the Act.

In light of the similarity of physical structure, the instant weddings, etc. are included in buildings defined in Article 2 (1) Item 2 of the Building Act. Therefore, it can be included in the concept of " underground room" as defined in Article 28 (5) Item 5 of the former Enforcement Decree of the Road Act. Therefore, this part of the Plaintiffs' assertion is without merit.

2) Whether the discretionary authority is deviates or abused or not

Article 38 (1) of the former Road Act (amended by Act No. 12248, Jan. 14, 2014; hereinafter "former Road Act") means the so-called special use of a specific road for a specific purpose in a tangible and fixed manner, apart from such general use, for roads used for general traffic of the general public. Such permission to occupy and use a road is a discretionary act for which a public property manager establishes a specific right to use a specific public property, taking into account the applicant's eligibility, purpose of use, influence on public interest, etc. The judicial review of such discretionary act is a discretionary act that determines whether there is an error in the interpretation of statutes or legal principles, mistake of facts, or violation of the principle of proportionality or equality, etc. (see Supreme Court Decisions 200Du1305, Feb. 19, 201; 2005Du1375, May 37, 2005).

According to the former Public Property and Commodity Management Act (amended by Act No. 1006, Feb. 4, 2010; hereinafter the same), if conditions are attached to the donation, it shall not be accepted (Article 7(2)). Property for which private rights have been established shall not be acquired as public property before the said private rights have been extinguished (Article 8). In particular, property for which private rights have been established shall not be established unless there are special circumstances (Article 19(1)), and a person other than the head of the relevant local government shall not construct permanent facilities, such as a building, etc. on the public property to the extent that it does not interfere with the current use and use of the public property (Article 13). In light of the above principles, it is possible to construct permanent facilities, such as construction of structures, etc. on the public property, on the ground and underground, to the extent that it does not interfere with the above provisions on public property and road management, the above principles should be sufficiently taken into account in light of the purport of the former Special Act’s overall provision on public property and road management.

According to the former Enforcement Decree of the Road Act [Attachment 1-2] 2. Article 28(5)1 through 5 and 8, the period of occupation and use of a road shall not exceed 10 years, and the period of occupation and use of other objects shall not exceed 3 years. In most cases, for which the period of occupation and use does not exceed 10 years, most of the occupancy and use are permanent facilities, such as electric poles, electric wires, water pipes, sewerage pipes, key facilities such as public telephones, or public telephones, gas stations, parking lots, terminals, and underground shopping districts, which are provided for public use, and most of the occupancy and use materials within the period of occupation and use are private facilities, such as signboards, signs, construction materials, or temporary facilities, which can be easily restored to their original state or original state, because neighboring residents are unable to use the road during the construction process, and the period of occupation and use of the road is limited to the purpose of use of permanent facilities or permanent facilities, even if the occupancy and use period does not exceed the period of occupation and use.

In light of the purpose, text, and structure of the former Road Act and the statutes related to public property and commodity management, even if a road management authority’s discretionary action is granted, if the use of permanent facilities solely provides for use by a specific private person or organization, the same effect as the creation of a de facto permanent private right to a road, which is a property for public use, has the same effect as granting a private person or organization an obvious preferential treatment to such private person or organization as property for public use. As such, when granting permission to occupy and use a road for the purpose of installation of permanent facilities, a local government, which is a road management authority, should decide whether to grant permission by fully considering whether the use or installation purpose of permanent facilities complies with the overall interest of the relevant local government, rather than

Considering the overall purport of Gap evidence 1, Gap evidence 7-1, Eul evidence 7-2, Eul evidence 8-1 through 3, Eul evidence 5-1 through 5, Eul evidence 6-1 through 8, and Eul evidence 6-1 through 8, the whole purport of the arguments and arguments is as follows: ① On February 8, 2010, the Seocho-gu Road Management Department asked the Seocho-gu Road Management Department about whether it is possible to grant the intervenor a permit to occupy and use the road of this case on the road of this case on February 18, 2010, and the Seocho-gu Disaster Management Department asked the Seocho-gu Disaster Control Department about the disaster of this case on February 25, 2010 and the road of this case on the road of this case on the road management of Seocho-gu and the road of this case on February 25, 2010, public sewage facilities (D = 600mm, L = 168m, 5m, and rainwater, etc.) managed in Seocho-gu, and notified the land of this case.

2. On December 24, 201, the head of Seocho-gu notified the head of the Si/Gun/Gu that the permission for occupation and use of the instant road would be in conflict with the water of communications facilities, and that the period required for construction would be much necessary. ③ The permission for occupation and use of the instant road was extended, improved, or relocated public sewage pipes, sewage facilities, water supply pipes, urban gas pipes, etc. installed on the instant road after the permission for occupation and use of the instant road was granted. ④ On December 7, 2011, the Plaintiff Y○○ et al. filed a petition for a residents’ audit with the Seoul Special Metropolitan City requesting corrective measures against the illegality of the permission for occupation and use of the instant road on June 1, 2012.

6. The above facts and arguments are as follows. ① The Intervenor installed facilities such as a parking lot, machine room, warehouse, and entrance marbing, etc. from the 6th underground to the 8th underground by comparing the above facts and arguments with the following circumstances, i.e., the 3th underground floor of the church site, including the above underground floor, and the 5th underground floor from the above underground floor to the 5th underground floor, and the 6th underground floor, and the above underground structures are not easy to restore, and the above underground structures are likely to cause considerable risks and responsibilities to the maintenance, management, and safety of the relevant facilities. As such, it is difficult for the Intervenor to use the above road as the main purpose of the permission to occupy and use the road without any need for public services or public use of the above facilities, and thus, it is difficult for the Intervenor to claim that it is difficult for the Intervenor to use the road as the main purpose of the permission to occupy and use the road for the above public use and distribution of the facilities.

D. Determination as to the claim for damages

1) Pursuant to Article 17(2)4 of the Local Autonomy Act, a resident may file a lawsuit demanding the head of a local government to exercise the right to claim damages or the right to claim restitution of unjust enrichment against the pertinent public official who committed an illegal act, such as disbursement of public funds, or against the other party related to the pertinent act. In the event of such lawsuit, the Local Autonomy Act does not have any special provision as to the right to claim restitution of unjust enrichment against the other party related to the pertinent act and the requisite for establishing the right to claim restitution of unjust enrichment. As to this, the determination should be made in accordance with the laws and regulations governing each of the above rights, including the Civil Act. The plaintiffs must prove illegality, intentional or negligent act, occurrence of damages, and causation in relation to the requirement for establishing the right to claim compensation. (2) The interpretation of Article 29(1) main sentence and proviso of the Constitution and Article 2 of the State Compensation Act in harmony with the legislative intent of the same Act refers to 300 cases where a public official causes damages to another person in the course of performing his/her duties.

In the instant case, it is difficult to view that public officials of Seocho-gu Seoul Metropolitan Government, who participated in the instant disposition, including gambling, ○○○○○, and ○○○○○, etc., lack of considerable attention, and there is no other evidence to acknowledge that there was gross negligence on the part of the above public officials.

3) In addition, the Plaintiffs knew or could have known from the beginning the beginning that the Intervenor’s occupancy and use of the instant underground portion was illegal in the course of filing an application for permission to occupy and use the road of this case, and claimed that the Intervenor should bear tort liability on the ground that the Intervenor conspireds with the public officials in charge by actively inducing public officials in charge of Seocho-gu office or by using unlawful means such as exercising pressure. However, the evidence submitted by the Plaintiffs, including the aforementioned facts, is insufficient to recognize the facts of the Intervenor recruited with the public officials in charge by actively inducing public officials or using unlawful means, and there is no other evidence to prove that the Intervenor

4) Therefore, the plaintiffs' above assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' preliminary claim of this case is justified, and all of the remaining claims are dismissed. It is so decided as per Disposition.