(a) Whether the occupation and use portion of an unauthorized road is subject to collection of unjust enrichment equivalent to the occupation and use charge of a road where it is commonly used for the traffic of the general public (affirmative);

B. Whether an underground connecting passage between subway stations and neighboring buildings should be opened at all times so that ordinary citizens can use it, and whether it can be readily concluded that it does not constitute occupancy and use of a road solely on the ground that ordinary citizens, other than those who have access to a building, use it (negative)

A. The term "road occupation and use" as stipulated in Article 40 of the Road Act means the so-called special use of a road for a specific purpose, which is used for a specific purpose, in a tangible and fixed manner, apart from such general use, with respect to a road for public use by the general public. Thus, the illegal use of a road without permission can be collected pursuant to the provisions of Article 80-2 of the Road Act only when the contents of an act of occupying and using a road fall under the above special use. Thus, the special use of a road is not necessarily exclusive and exclusive, but it is possible to coexist with the general use of a road according to its intended use, and in such a case, it cannot be said that the road occupation and use is public use at the same time.

B. The Plaintiff’s use and function of the underground connecting passage between the Plaintiff’s new apartment and subway stations approved by the Seoul Metropolitan City subway Corporation is primarily for the convenience of traffic of the general public, and the use and function of the underground connecting passage between the Plaintiff’s new apartment and subway stations are above, and it cannot be deemed that the Plaintiff’s act of installing and using the above underground connecting passage is an occupation and use of the road. However, if the main use and function of the above underground connecting passage are to be used as the passage of the people who enter the Plaintiff’s building, but it is not restricted to the passage of the general public, and it is merely a use of the above underground connecting passage when considering the inconvenience of the use of the road, the act of installing and using it should be deemed to be an occupation and use of the road. In this case, whether it falls under any of the above cases shall be determined by examining the location and structure of the above underground connecting passage, connection with the Plaintiff’s owned building and the general road, and it should not be determined that the Plaintiff’s use and use of the above underground connecting passage cannot be made by the general public.

Articles 80-2 and 40 of the Road Act

Seoul Investment Finance Co., Ltd., Ltd., Pacific Law Office, Attorneys Kim In-con et al., Counsel for the defendant-appellant

Attorney Jung-gu, Seoul Metropolitan Government

Seoul High Court Decision 89Gu5913 delivered on May 24, 1990

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s construction completion of the above-mentioned underground passage was 198,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00.

2. According to the provision of Article 80-2 of the Road Act, with respect to a person who occupies and uses a road without obtaining permission to occupy and use the road under the provision of Article 40 of the Road Act, the amount equivalent to the occupation and use fees for the occupation and use period can be collected as unjust enrichment. The occupation and use of the road under the provision of Article 40 of the Road Act refers to the special use of the specific part of the road, which is used for a specific purpose in a tangible and fixed manner, apart from such general use, with respect to the roads for public use by the general public. Thus, it can be collected unjust enrichment for the occupation and use of the road without permission pursuant to the provision of Article 80-2 of the Road Act only where the contents of the occupation

According to the records, as acknowledged by the court below, the period of occupation and use specified in the letter of permission to occupy and use a road for the plaintiff is from the installation of a underground connecting passage to the time of recovery from its original state, and therefore, it does not clearly indicate the expiration of the period of occupation and use. However, according to Gap evidence No. 4 (Imposition of Road Occupancy Charges) and the purport of the defendant's oral argument (in particular, see preparatory documents as of June 26, 1989), the defendant seems to have the purport that the period of occupation and use permission for the plaintiff as to the plaintiff is the expiration of the period of construction of the underground connecting passage, such as the construction period of the underground connecting passage. Thus, it shall be deemed that the permission to occupy and use the road is invalidated due to the expiration of the period of occupation and use permission as the underground connecting passage, and therefore, the validity of the disposition imposing unjust enrichment equivalent to the occupancy and use fees of this case shall be determined depending on

However, the court below maintained and maintained the above underground connecting passage according to the approval conditions that the plaintiff cannot use it for the purpose of pursuing the plaintiff's private profit and should open it at all times to the general public, and recognized that many general citizens, other than those who have access to the plaintiff's private house, have used it until now, and determined that the plaintiff cannot be deemed to have occupied and used the above underground passage.

However, the special use of a road is not necessarily exclusive or exclusive, but it is possible to coexist with the general use of a road according to its purpose of use, and in such a case, it cannot be said that the area of the road is the common use of the traffic of the general public at the same time.

In this case, if the use and function of the above underground connecting passage is mainly for the convenience of traffic of the general public, and it is used as the passage of the people who enter the plaintiff's building, the above underground connecting passage is for the general use of the road, and it is difficult to view that it is for the plaintiff's special use, and the plaintiff's act of installing and using it is not for the purpose of the use of the road. However, the main purpose and function of the above underground connecting passage is to use it as the passage of the people who enter the building owned by the plaintiff, and it is merely for the use of the road as the passage of the people who enter the building owned by the plaintiff, but it is nothing more than for the general use, and if it is merely for the general public to use it, the above underground connecting passage is provided for the special use of the building for the benefit of the plaintiff's use rather than for the general use,

Whether the installation and use of the underground connecting passage of this case falls under any of the above cases shall be determined by specifically examining all the circumstances, such as the location and structure of the above underground connecting passage, connection with the building owned by the plaintiff and the general roads, and the general use status of the general public. It is not readily concluded that the condition of approval for installation of the above underground connecting passage, such as the original adjudication, has a provision that the plaintiff cannot use it for the purpose of increasing private profit and should be opened at all times so that it can be used by the general public, and that many general citizens, other than those who currently enter the building owned by the plaintiff, use it does not constitute a special

Although the court below should have reviewed the above points more closely and judged whether it constitutes the road occupancy and use, it is reasonable to discuss this point because the court below erred by misapprehending the legal principles as to the road occupancy and use of a road and incomplete deliberation, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)