The meaning of "charges for occupancy and use" under Article 80-2 of the former Road Act, which is a provision imposing indemnity on a person who occupies and uses a road without permission to occupy and use the road.

Article 43(1) of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) provides that the road management agency may collect “the occupancy charge” from the person who occupies and uses a road with permission. Article 44 provides that the person who occupies and uses the road without permission for occupancy and use of the road may be exempted from the occupancy charge under Article 43 in certain cases. Article 80-2 provides that the amount equivalent to 120/100 of the “the occupancy charge” for the period of occupancy and use may be collected from the person who occupies and uses the road as compensation unless there are special circumstances, such as the provision of other Acts and subordinate statutes. The term of the same Act and subordinate statutes is equally interpreted and applied to the person who occupies and uses the road without permission, and the legislative purpose and purpose differ from the occupancy charge imposed on the person who occupies and uses the road. Thus, the term “the occupancy and use charge” in Article 44 of the former Road Act should be reduced or exempted from the occupancy and use charge without permission.

Articles 43(1) (see current Article 41(1)), 44 (see current Article 42), and 80-2 (see current Article 94) of the former Road Act (wholly amended by Act No. 8976, Mar. 21, 2008)

Korea Electric Power Corporation (Attorney Yoon-sik et al., Counsel for defendant-appellant)

The head of Yongsan-gu Seoul Metropolitan Government

Seoul High Court Decision 2006Nu19374 decided September 7, 2007

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the facts duly admitted by the court below and the records, the indemnity of this case was imposed pursuant to the relevant laws and regulations on the ground that the plaintiff laid underground electric facilities, etc. under the defendant's management without permission and occupied them without permission. It was revealed that the situation of the plaintiff's underground facilities is different from the situation of the underground facilities already permitted according to the water management system (UIIIS) constructed and submitted by the plaintiff. At the time, the defendant notified the plaintiff of the plan to impose indemnity on the part investigated as the omission of permission due to the above circumstance, which was 200 square meters of the construction year, location, and landscape of pipelines illegally occupied and used without permission. The plaintiff did not dispute about the omitted part and requested to request the imposition of reduced or exempted usage fees in consideration of the fact that the electricity business is a public service business, and the disposition of this case also did not contain any error of law as to the ground of appeal, particulars of occupancy and use, lot number, payment deadline, land category, etc., and thus, it cannot be seen that it violated the provisions of this case 2 of this case.

The decision of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to the grounds for disposition and the degree of presentation of reasons.

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is justifiable that the court below recognized that there was no legitimate permission to occupy and use the road which is the object of the disposition imposing indemnity of this case on the basis of the facts recognized. The judgment below did not err by violating the rules of evidence or by misapprehending the legal principles

3. As to the third ground for appeal

Article 43(1) of the former Road Act (wholly amended by Act No. 8976 of Mar. 21, 2008) provides that the road management agency may collect “the occupancy charge” from the person who occupies and uses the road with permission. Article 44 provides that the person who occupies and uses the road without permission for occupancy and use may be exempted from the occupancy and use charge under Article 43 in certain cases. Article 80-2 provides that the amount equivalent to 120/100 of the “the occupancy charge” for the period of occupancy and use may be collected as indemnification unless there are special circumstances, such as the provision of other Acts and subordinate statutes, and the same term in the same Act provides that the indemnification imposed on the person who occupies and uses the road without permission shall be equally interpreted and applied, and that the indemnification imposed on the person who occupies and uses the road shall be exempted from the occupancy and use charge without permission, so it differs from the legislative purpose and purpose of Article 44, which is, the road management agency’s imposition of the occupancy and use charge without permission shall be exempted from the usage charge without permission.

In the same purport, the court below is just in rejecting the plaintiff's assertion that the reduced or exempted fee should be the basis of the reduced or exempted fee for the calculation of compensation for a person who has reduced or exempted fees for road occupation and use, and there is no error in the misapprehension of legal principles

4. Conclusion

Therefore, the appeal is dismissed, 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.

Justices Kim Nung-hwan (Presiding Justice)