Standard of determining whether the purpose of the resident litigation system and Article 17(1) of the Local Autonomy Act constitute “matters concerning the acquisition, management, and disposal of property” as the subject matter of the resident litigation / Whether the permission to occupy and use is deemed to be for realizing and utilizing the value regardless of the original function and purpose of the road, etc. (affirmative)

The purpose of the resident litigation system is to ensure the legality and proper operation of the local government finance administration by seeking the prevention or correction of unlawful financial accounting activities of the local government or demanding the recovery of damages arising therefrom by allowing the residents of the local government to file a claim for the recovery of damages arising therefrom. Therefore, the resident litigation system may, in principle, be filed against the acts directly aimed at dealing with the matters related to the financial accounting and accounting of the local government, and the determination shall be made in accordance with the standards applicable to the “matters concerning the acquisition, management, and disposal of property” as provided for the subject of the resident litigation in Article 17(1) of the Local Autonomy Act. In particular, where the permission to occupy and use public goods, such as roads, etc., or public goods, which are exclusively used by a specific private person is assessed to realize and utilize their utility regardless of the original

Article 17 (1) of the Local Autonomy Act

See Attached List of Plaintiffs (Law Firm Shin, Attorneys Kim Jong-nam et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Dong LLC, Attorneys Kim Bo-ho et al., Counsel for the defendant-appellant)

The Korean Film Association Green Cross (Law Firm LLC, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu21030 decided May 15, 2014

Of the judgment of the court below, the part of the claim concerning the claim for damages arising from the permission to occupy and use the road for the defendant's assistant intervenor is reversed, and the same part of the judgment of the court of first instance is revoked and remanded to the Seoul Administrative Court. The remaining appeals by the plaintiffs are dismissed.

The grounds of appeal are examined.

1. As to the part of the claim for damages arising from the permission to occupy and use the road by the Defendant’s Intervenor (hereinafter “ Intervenor”) as to the primary and conjunctive claim and the aforementioned permission

A. The purpose of the resident litigation system is to ensure the legality and proper operation of local government finance administration by allowing local government residents to seek the prevention or correction of illegal financial accounting acts of local government or to request the recovery of damages arising therefrom. Therefore, the resident litigation system may, in principle, be brought against the acts for the purpose of directly dealing with matters concerning the financial accounting and accounting of local government, and whether it constitutes “matters concerning the acquisition, management, and disposal of property” as provided for residents in Article 17(1) of the Local Autonomy Act shall be determined in accordance with the standards. In particular, in a case where the permission for occupation and use of public property, such as roads, or public property, or public property, is assessed to be aimed at realizing and utilizing it regardless of its original function and purpose.

B. The reasoning of the judgment below reveals the following facts.

1) On June 1, 2009, the intervenor purchased 6,861.2 square meters of the Seocho-gu Special Planning Zone II land within the Seocho-gu Seoul Special Planning Zone among the land located within the district unit planning zone as of June 1, 2009 for the construction of the church building. On February 4, 2010, the Mayor of Seoul Special Metropolitan City determined and publicly notified the Seocho-gu Special Planning Zone II (Detailed Development) change plan according to the Intervenor’s district unit planning proposal for the implementation of the above project.

2) During the process of promoting the construction of a church building on the site B of the special planning zone B purchased as above, the intervenor applied for permission to occupy and use the above part of the underground passage to the Defendant for the purpose of constructing a passage to the underground parking lot on the ground of the Seocho-gu Seoul Metropolitan Government national map owned by Seocho-gu, Seoul Metropolitan Government and using it as part of the distribution facility constructed on the underground space of the above building, as the road side of the Seocho-do, which is linked to the site of the above church building, was set as a vehicle access prohibited section according to the above district unit alteration plan.

3) On April 6, 2010, the Defendant issued a permit to occupy and use the road of “7 meters in width x 154 meters in length x 154 meters” among the total width of 12 meters, which is the sum of 4 meters in width that the Intervenor planned to contribute to the Defendant by expanding the area among the newly constructed church buildings of 325 square meters on the south side as a childcare center (hereinafter “instant permit to occupy and use the road”). The Defendant issued a permit to occupy and use the road of “7 meters in width x 154 meters in length” from April 9, 2010 to December 31, 2019 (hereinafter “instant permit”).

4) According to the permission for occupation and use of the above site of road, the Defendant would be paid the occupation and use fees (235,240,000 won when based on the year 2012) under the Road Act and the Seoul Special Metropolitan City Ordinance during the Intervenor’s occupation and use period.

C. According to the above factual basis, since the underground part of the road which is the subject of the permission to occupy and use the road of this case is not subject to the original traffic, it seems that the permission to occupy and use the road is not directly related to the original function and purpose of the road, which is the traffic of the general public. In addition, the purpose of the permission to occupy and use is to allow the Intervenor, who is a specific religious organization, to occupy and use the part exclusively, and it does not constitute the purpose of the permission or the purpose of occupancy

In light of such various circumstances, it is reasonable to view that the substance of the usage relationship formed by the above permission of road occupancy and use is to realize the utility value of the underground part of the road site as a whole and to grant the right to use and benefit in return for the aforementioned part to a specific private person. Therefore, the above permission of road occupancy and use of this case is similar to the lease of the above underground part to a third party to use the value of the above underground part. In light of the above legal principles, it constitutes "the matters concerning the management and disposition of property" under Article 17 (1) of the Local Autonomy Act that affects the property value

D. Although underground space with the permission to occupy and use the road of this case falls under the permission to occupy and use the road of this case and substantially permits permanent occupation and use due to impossibility of reinstatement, the court below judged otherwise, and thus, the ground of appeal disputing the illegality of the permission to occupy and use the road of this case is judged as a matter of determination

E. Ultimately, the court below erred by misapprehending the legal principles as to the legal nature of the permission to occupy and use the road of this case and the subject matter of resident lawsuits, thereby adversely affecting the conclusion of the judgment, on the grounds the court below affirmed the judgment of the court of first instance which rejected the lawsuit.

2. As to the claim for revocation of a construction permit

The Plaintiffs also appealed to the part of the lower judgment’s claim for revocation of the construction permit against the Intervenor, but there is no specific ground of appeal as to this part of the petition of appeal or the appellate brief.

3. Conclusion

Therefore, among the judgment below, the part of the judgment of the court below regarding the main claim seeking confirmation of invalidity as to the permission to occupy and use a road for the intervenor and the claim for damages related to the above permission is reversed, and since this part is sufficient to be directly tried by the Supreme Court, the same part of the judgment of the court of first instance shall be revoked. In addition, this part of the case is remanded to the court of first instance for further proceedings consistent with the main sentence of Article 418 of the Civil Procedure Act, and the remaining appeal by the plaintiffs is dismissed. It is so decided as per Disposition by the assent

[Attachment] List of Plaintiffs: Omitted

Justices Kim Shin (Presiding Justice)