[1] The case holding that the Korea Highway Corporation which has invested in a toll road management right, including the right to collect tolls from the State, in the section of the national expressway section between Yang Jae-Seoul and that of the main road between the two

[2] The case affirming the judgment of the court below which held that it is within the scope of legitimate exercise of discretionary power of the Korea Highway Corporation, the road management authority, which is the road management authority, to collect tolls for the above sections after expanding the toll road section from the original toll road to the 8th-line road for the cross-road border road which was free of charge

[1] The case holding that the State's authority to exercise the right to collect tolls on the section of the border road between the two sub-soils to exercise the right to collect toll on the toll road shall be held to the Korea Highway Corporation which has invested in

[2] The case affirming the judgment of the court below which held that it is within the scope of legitimate exercise of discretionary power of the Korea Highway Corporation, the road management authority, which is the road management authority, to collect tolls from the above sections, after expanding the toll road section from both sides to the 8th line road between both sides and upper roads, which was the first toll road and became free of charge

[1] Article 2 (3) (see current Article 10 (1)) of the former Toll Road Act (amended by Act No. 6403, Jan. 29, 2001); Article 10 (see current Article 19) of the former Toll Road Act; Article 5 of the National Expressways Act; Article 6 (1) of the Korea Highway Corporation Act / [2] Article 2 (3) (see current Article 10 (1) (see current Article 4 (1)) of the former Toll Road Act (amended by Act No. 6403, Jan. 29, 2001); Article 10 (see current Article 19) of the former Toll Road Act; Article 5 of the National Expressways Act; Article 6 (1) of the Korea Highway Corporation; Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm Dump, Attorneys Park Young-young et al., Counsel for the plaintiff-appellant)

The Minister of Construction and Transportation and one other (Law Firm U.S., Attorney Choi Jae-ju, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Nu1474 delivered on May 15, 2003

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

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

1. Regarding ground of appeal No. 1

According to the facts established by the court below and the records, although the plaintiff (appointed party) and the designated party 1 (hereinafter referred to as "the plaintiff et al.") operate a passenger car owned by them through a set of 452 YU-dong, Sungnam-gu, Sungnam-si, the main office of the Construction of the Toll Road Act (hereinafter referred to as "the instant section") but did not pay the prescribed tolls of the former Toll Road Act (amended by Act No. 6403 of Jan. 29, 2001; hereinafter referred to as "former Toll Road Act"), the main office of the Construction of the Korea Highway Corporation (hereinafter referred to as "the defendant Construction Corporation") under the former Toll Road Act (hereinafter referred to as "the main office of the Construction of the Korea Highway Corporation") as the representative of the National Highway Corporation and notified the plaintiff et al. of the right to manage the toll road of this case to use the toll road of this case under the former Toll Road Act (hereinafter referred to as "the former Construction and Transportation") and the former Construction and Transportation's right to use of the toll Act.

The court below erred in holding that the defendant Corporation has the right to collect tolls for the instant section under Article 6 (1) and (2) of the Motorway. However, the conclusion that the defendant Corporation held the right to collect tolls for the instant section is just, and there is no error in the misapprehension of legal principles as to the toll collector, which affected the conclusion of the judgment. The ground of appeal pointing this out is without merit.

2. As to the grounds of appeal Nos. 2, 3, and 4

According to the reasoning of the judgment below, the court below, based on the adopted evidences, acknowledged the facts as stated in the judgment of the court below, such as that the toll road was originally constructed and became free of charge after the public announcement of the toll road (hereinafter referred to as the "public announcement of this case"), and announced that the toll should be free of charge from October 5, 1987 with respect to the portion of this case for which the toll had been collected through the public announcement of this case. It is merely that the road management authority's own opinion not to collect the toll for the portion of this case, and it cannot be said that any qualitative change has occurred in the road of this case which would lose the requirements as the toll road of this case and thus, it is legitimate to collect the toll again for the portion of this case since the public announcement of the road of this case constitutes the "road extension construction" of the toll road of this case after the public announcement of the toll road of this case, and it shall be deemed that the road management authority has to collect the toll again from the public announcement of the new road of this case to the extent of "the new road construction" of the road of this case.

Examining the records in light of relevant laws and regulations, the above recognition and judgment of the court below are just, and there are no errors in the misapprehension of legal principles as to the principle of trust protection and proportionality, the principle of self-defense under the Constitution, the principle of equality, and Articles 3 and 6 of the former Act, as otherwise alleged in the ground of appeal.

In addition, the lower court determined that the Plaintiff’s assertion that, as alleged by the Plaintiff, the right to collect tolls is extinguished as long as the Defendant Corporation has decided to collect tolls again for the instant section, which is a part of the ordinary national expressway subject to approval of the integrated collection of tolls, as before the previous collection of tolls, is also applicable to the instant section. If the integrated collection of tolls under Article 9(3) of the former Act applies to the instant section, the entire national expressway to which the integrated collection system applies, should be based in order to apply Article 9(1) and (2) of the former Act. Therefore, the limit of tolls cannot be set for only the instant section as alleged by the Plaintiff, and therefore, on the premise that the independent collection system applies to the instant section, the total amount collected as tolls for the instant section exceeds the total amount of principal and interest of all kinds of expenses invested in the instant section, and thus, the right to collect tolls is entirely recovered.

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the requirements for the establishment of toll roads or in the misapprehension of the reasoning as otherwise alleged in the ground of appeal

In addition, the court below, based on the adopted evidence, found that the defendant Corporation had changed the toll collection period of the national expressway by November 198, 207 after the change was announced in the Official Gazette from July 18, 1992 to July 20, 1992, and again publicly announced in the Official Gazette from July 20, 1992 that included the toll collection section, and on the same day, publicly announced in a daily newspaper the above contents. The defendant Minister decided to consolidate the toll collection of the national motorway including the instant section on May 9, 1980 to consolidate the toll collection of the national motorway. The court below rejected the plaintiff's claim that there was no public notice on the toll collection period of the instant section or that there was no public notice on the daily newspaper from July 20, 1992.

On the other hand, the court below held that the disposition of this case is not null and void on the ground that the defendant Corporation did not obtain the consent or consultation of the relevant administrative agency, unlike the case where the defendant Corporation et al. paid again the portion of this case without simply "consultation of the Toll Road Deliberation Committee". In light of related Acts and subordinate statutes, the above decision of the court below is just, and there is no error of law in the misapprehension of legal principles as to the fulfillment of the requirements of toll roads under Article 6 (1) of the former Act, as otherwise

3. As to the fifth ground for appeal

According to the reasoning of the judgment below, the court below held that the disposition of this case cannot be deemed to be in violation of the principle of equity, considering the following circumstances: (a) the government announced a plan for the subdivision of a party branch around April 1987 and there is no evidence to acknowledge that the government promoted that the persons who move into the subdivision can use the motorway free of charge to Seoul; and (b) the defendant Corporation collected tolls for the sections of this case on the grounds of significant changes in circumstances after the public announcement of this case; and (c) in light of the records, the above recognition and decision of the court below are justified, and there is no error in the misapprehension of the legal principles as to the principle of trust protection and the principle of equity, as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)