A. Criteria for determining whether the occupation and use of a road is deemed a special use

(b) The case holding that it is difficult to view that it constitutes “special circumstances” under the former Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and Use Fees, which is a requirement for the reduction of road occupation and use fees under the former Ordinance on the Collection of Road Occupancy and Use Fees, solely on the ground that general traffic users more than those expected at the time of

A. The term "road occupation and use" as stipulated in Articles 40, 43, and 80-2 of the Road Act means the so-called special use of a specific part of a road which is used in a tangible and fixed manner, apart from such general use, with respect to a road for public use by the general public. Such 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 purpose. In such a case, it cannot be said that the road occupation and use is not public use of the general public at the same time. On the other hand, whether the road occupation and use is deemed as such special use or as general use should be determined depending on the main purpose and function of the road occupation and use.

(b) The case holding that it is difficult to view it as "special circumstance", which is a requirement for the reduction of road occupation and use fees under Article 4 of the former Seoul Special Metropolitan City Ordinance on Collection of Road Occupancy and Use Fees (amended by the Seoul Special Metropolitan City Ordinance No. 3046, Nov. 30, 1993), solely on the ground that general traffic users more than those expected by the building owner at the time of the installation of the underground connecting passage use the underground connecting passage.

A.B. Articles 40, 43, and 80-2(b) of the Road Act, Articles 3 and 4 of the former Seoul Special Metropolitan City Ordinance on the Collection of Road Occupancy and Use Fees (amended by Seoul Special Metropolitan City Ordinance No. 3046, Nov. 30, 1990)

A. Supreme Court Decision 90Nu855 delivered on April 9, 1991 (Gong1991, 1387) 91Nu8173 delivered on September 8, 1992 (Gong1992, 2891) 92Nu1325 delivered on May 11, 1993 (Gong193Ha, 1725)

Hongk Law Firm, Attorneys Ansan-dong et al., Counsel for the plaintiff-appellant-appellant-appellee)

The head of Gangnam-gu Seoul Metropolitan Government

Seoul High Court Decision 93Gu19650 delivered on April 13, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal No. 1 are examined.

For the purpose of Article 40, Articles 43 and 80-2 of the Road Act, the term "road occupation and use" means the so-called special use of a specific part of a road which is used in a tangible and fixed manner, apart from such general use, with respect to a road used for the traffic of the general public. Such special use of a road is not always exclusive and exclusive, but it is possible to coexist with the general use of a road. In such a case, it cannot be said that the road occupation and use is at the same time public use for the traffic of the general public. On the other hand, whether the road occupation and use is deemed as the special use or as the general use should be determined depending on the main use and function of the road occupancy (see, e.g., Supreme Court Decisions 90Nu855, Apr. 9, 191; 91Nu8173, Sept. 8, 1992; 92Nu1325, May 11, 1993).

In full view of the above legal principles and records, the court below is justified in holding that the underground connecting passage of this case connecting the subway station and the 1st underground floor of the YHz building owned by the plaintiff is used as the passage of the persons entering the above YHz building and its main purpose and function is used as the passage of the building owner, and thus the plaintiff, the building owner, is subject to collection of unjust enrichment equivalent to the road occupation and use fees or road occupation and use fees as prescribed by the Road Act, and there is no error of law such as the theory of lawsuit.

The grounds of appeal No. 2 are examined.

Unlike what the Plaintiff anticipated at the time of the construction of the underground connecting passage of this case, the court below held that the determination of the above recognition by the court below is justified, and there are no errors in the misapprehension of legal principles as to the theory of lawsuit. The above determination of the court below is just in light of the records and collection ordinances, and there are no grounds to hold that there are no errors in the misapprehension of legal principles, such as the theory of lawsuit.

The ground of appeal No. 3 is examined.

In light of records and collection ordinances, the decision of the court below that the provisions that apply to the occupation and use of roads of the underground connecting passage of this case among the provisions of the attached Table of Article 3 (1) of the Collection Ordinance (the standard table for calculation of occupancy and use fees) are just and acceptable for the decision that it is reasonable to apply 10/100, which is the occupancy and use rate of the main sentence of subparagraph 6 of the above attached Table as it is obvious that it is not subparagraph 4 of the above attached Table, and there is no error as to the theory of lawsuit.

The ground of appeal No. 4 is examined.

Since the argument on this issue is apparent in the record that the plaintiff asserts only when it comes to the trial whether it is not clear at all by the fact-finding court, it cannot be a legitimate ground for appeal against the judgment below. There is no reason to argue.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)