Korea Land Corporation (Attorney Jeong-jin et al., Counsel for defendant-appellee)

KT Co., Ltd. and 1 (Law Firm Cheongn Law, Attorneys Kang Gyeong-soo et al., Counsel for the defendant-appellant)

October 16, 2008

1. The plaintiff's claim against the defendants is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Plaintiff shall pay 128,926,793 won, Defendant Republic of Korea shall pay 108,218,675 won, and 20% interest per annum from the day following the delivery of the copy of the instant complaint to the day of complete payment.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by taking into account the whole purport of arguments in each of the evidence Nos. 2-1 through 5, evidence Nos. 3-1, 2, evidence Nos. 4, 5, 6, evidence Nos. 7-1 through 4, evidence No. 8 through 11, evidence No. 12-1 through 6, evidence No. 13-1, 2, evidence No. 14-1 through 25, evidence No. 13-2, evidence No. 14-1, 2, Eul No. 2-5, evidence No. 6, evidence No. 6-1, 2, 3, 1, and 2.

A. On September 29, 199, the Gyeongnam Do governor approved and notified the application for approval of the designation, alteration and development plan of the planned area for the housing site development project of Kim Young-gu applied by the Plaintiff, and attached the conditions of approval that "as to the access roads crossing the national highways, an additional lane shall be installed in order to induce securing and smooth driving of the automobiles running on the side of the national highways, and as to the access roads crossing the national highways, it shall be planned in a way that combines the road networks in the national highways and re-consultation with the road management agency separately."

B. On August 7, 2003, the Plaintiff obtained from the head of the Busan Regional Construction and Management Administration the permission for road construction work for the purpose of the road-related construction work with a non-management authority for the purpose of the connected construction of the national road 14, 25m of the length of 843m, 35m national highways of 35m wide, 531m length, 34, 37m wide, and 25m wide as to the site construction of the zone-based national highways of 14, 25m wide as to the site construction of the zone-based national highways of 14, 25m wide.

On December 11, 2003, the Kim Sea Mayor approved and publicly announced an implementation plan to open the above road section into the Jinyoung Urban Planning Facility (Road) of 1-1 line (the length of 843m, 35m), 1-2 line (the length of 531m, 35m in width).

C. On July 14, 2004, the Plaintiff approved the design modification (third-party) that increases the construction cost of the construction project for the housing site development project for Heung Construction Co., Ltd. from KRW 43,395,000 to KRW 47,793,00,000 from KRW 47,793,00,000 from the construction cost of the construction project for the housing site development project to KRW 14,25 for national highways due to the construction of the housing site in the Kim Young-gu

D. Upon the Plaintiff’s request for relocation of optical cables, etc. laid underground with the permission to occupy and use in the above road section, the Plaintiff notified the Plaintiff that it is possible to remove the telecommunication facilities that the Plaintiff should bear.

Accordingly, on December 3, 2007, the Plaintiff paid 141,605,388 won in total to Defendant Kti (KT 110,456,000 won + 31,149,388 won in the KT Hadic Network Operation Bureau) and returned 12,678,595 won in remainder of using it as a dual construction cost ( Case J Hadic Point 9,105,328 won + 3,573,267 won in the KT Hadic Network Operation Bureau).

E. On May 8, 1995, the head of the Busan Regional Construction and Management Administration attached a condition of permission to occupy and use the national highways 14 lines from the Jindong-si to the Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si for the purpose of underground power pipes, and “the civil petition

The Army Head of Jinyoung Construction Co., Ltd. under the Defendant Republic of Korea applied for the extension of the period of permission to occupy and use the above road section, and the head of Jinyoung Provincial Construction Co., Ltd. approved the extension of the period of permission on January 5, 2005 until June 30, 2014. In the event a road management authority requests the removal of obstacles due to national projects, etc., the road management authority should immediately implement it at the expense of the person subject to permission.

F. On September 10, 2004, the Plaintiff requested the Defendant Republic of Korea to attend the National Highway 14, 25th National Road 14, and the military power lines buried as above are likely to be exposed to trees buried on the existing road. The Defendant Republic of Korea selected and notified the observer on September 14, 2004, and requested the Defendant Republic of Korea to implement road works after performing the reinforcement works on the ground that the military power lines in the section of the National Road 14, 25th Line 14, and the military power lines in the section of the National Road 14, 25th Line 25 are laid underground in the middle quarter.

The Plaintiff, from March 22, 2005 to May 6, 2005, performed a high-tension protection work to reinforce the military power line with the cost of KRW 108,218,675, and filed a claim for the construction cost on August 3, 2007. However, on September 5, 2007, the Defendant Republic of Korea refused payment on the ground that the Electric Power Line Reinforcement Corporation was itself a construction work conducted without prior consultation with the military unit on the ground that it was necessary for the Plaintiff’s road work.

2. Relevant Acts;

A. The former Road Act (amended by Act No. 7103 of Jan. 20, 2004)

Article 64 (Causer's Liability) The whole or part of the expenses of road works required due to other works or acts may be borne by the person liable to bear the expenses of such other works or acts.

Article 65 (Expenses for Appurtenant Works) ① Expenses for other works required due to road works or for executing road works, except in the case of special conditions, shall, in principle, be borne, by the person liable to bear the expenses for roads under the Road Act to the extent that the said requirements accrue, to the extent that in principle, unless the permission under Article 40 (including the case of occupation and use by consultation or approval under Article 8) is granted: Provided, That the person whose occupation and use fees have been reduced pursuant to subparagraph 3 of Article 44 shall bear the whole of the expenses for other works required due to the occupation and use.

(2) In a case where road works under paragraph (1) have been necessitated on account of other works or acts, the provisions of Article 64 shall also apply mutatis mutandis to the expenses of such other works.

(b) Road Act (amended by Act No. 7103 of Jan. 20, 2004 and enforced on July 21, 2004);

Article 64 (Causer's Liability) The whole or part of the expenses of road works required due to other works or acts may be borne by the person liable to bear the expenses of such other works or acts.

【Expenses for Appurtenant Works】 Except in the case of a special condition on permission under Article 40 (including the case of holding a consultation or approval under Article 8), the expenses for other works required due to road works or for executing road works shall, in principle, be borne, in whole or in part, by the person liable to bear the expenses for roads under the Road Act to the extent that it causes the need to do so: Provided, That in a case where the road management agency (including the Korea Highway Corporation as proxy with the authority of the Minister of Construction and Transportation under the Motorway Act and the project executor under the Act on Private Participation in Infrastructure as prescribed by the Act on National Expressways) implements road works, the whole of the expenses for other works required due to the occupation and use of road shall be borne by the person liable to bear the expenses for roads under the provisions of the Road Act to the extent that

(2) In a case where road works under paragraph (1) have been necessitated on account of other works or acts, the provisions of Article 64 shall also apply mutatis mutandis to the expenses of such other works.

3. Determination

A. Claim as to Defendant case

1) The plaintiff's assertion

The Plaintiff asserts that Defendant K has a duty to fully bear the cost of relocation construction, such as optical cables, which are appurtenant works required due to the instant road construction, which are not related to any other construction work, and thus, the Plaintiff is obligated to receive payment from the Plaintiff and return this facility to the Plaintiff, such as optical cables, which were not returned.

2) Determination

On the premise that the former Road Act applies once to this case (Article 65 (1) (the proviso to Article 65 (2) of the former Road Act is amended). In regard to this case, if it is necessary to carry out road works due to other than road works, the former Road Act shall apply. According to the provisions of the former Road Act, the expenses of the road works (B works) shall be borne, in whole or in part, by the person who is obliged to bear the expenses of the other works (Article 64), and the road works (B works) which have no causal relation with the former works (Article 64), and the expenses of the appurtenant works (C works) shall be borne, in whole or in part, by the person who is obliged to bear the expenses of the appurtenant works (Article 65 (1) of the former Road Act) and the expenses of the appurtenant works (Article 64 subparagraph 3 of the former Road Act) shall be borne, if necessary, by the person who has provided the expenses of the appurtenant works (Article 65 (1) of the Act).

According to the facts acknowledged above, the removal of optical cables, etc. (C) is an additional construction due to the instant road works (BB works). The instant road works are part of the Plaintiff’s construction works for the development of a housing site development project (A works) and with the permission of a non-management authority to implement road construction for the confirmation and packing of roads following the Plaintiff’s entry into the 14, 25 line of national highways. Since the construction of a road or road management authority’s construction of a road is not implemented due to the need for road construction or road management, the relocation cost of optical cables, etc. should be borne by the Plaintiff, who is the polluter, pursuant to Articles 65(2) and 64 of the former Road Act. Thus, the Plaintiff’s above assertion

B. Claim against Defendant Republic of Korea

1) The Plaintiff asserts that Defendant Republic of Korea should bear the cost of reinforcement of the military power line according to the subsidiary officers at the time of extension of the period of permission to occupy and use the road.

According to the above recognition, the reinforcement work of the military power line of this case is deemed to be an additional construction work due to the road work of this case, and the defendant Republic of Korea shall not be deemed to be different because it first raised the necessity of reinforcement work due to concerns over ground subsidence in the area where the military power line of this case is laid underground due to the construction of this case. Thus, in principle, Article 65 (2) and Article 64 of the former Road Act shall be applied, and the cost of reinforcement of the military power line of this case shall be borne by the plaintiff. However, if there is a father who was imposed on the permission of road occupation and use, it may be excluded from the application of the above provision (Article 65 (1) of the former Road Act except where there is any special condition on the permission under Article 40). However, the same applies to the application of Articles 65 (2) and 64 of the former Road Act).

Therefore, according to the purport of the Sub-sections Nos. 1 and 2 and the overall purport of the arguments and arguments as to the purport of the Sub-sections imposed on Defendant Republic of Korea, the “this construction project” which the Defendant Republic of Korea is responsible for the civil petitions and all damages at the time of granting permission to occupy and use the road refers to the construction works laid underground along with the power pipe, which is the purpose of the permission to occupy and use the road. At the time of extension of the period of permission to occupy and use the military power lines of this case, if the road management authority requests from the road management authority at the time of extension of the period of permission to occupy and use the military power lines of this case, it cannot be deemed that the above sub-sections are an obstacle interest theory that allows the Defendant Republic of Korea to perform

2) The Plaintiff asserted that the Defendant Republic of Korea has a duty to pay reinforcement costs in accordance with the agreement with the Plaintiff, as it was a separate construction cost, which is not an appurtenant construction cost, and that the Defendant Republic of Korea would bear the construction cost as secured by the budget, but the Defendant Republic of Korea has a duty to pay reinforcement costs. However, the facts acknowledged earlier or the entries in Gap evidence No. 14-5, No. 14-8, No. 15, and No. 15 are insufficient to acknowledge the agreement of the Plaintiff’s assertion. There is no

3) The Plaintiff asserts that the reinforcement cost should be borne by the Defendant Republic of Korea pursuant to Article 65(1) of the former Road Act, since the Military Power Line Reinforcement was entirely carried out by the Defendant Republic of Korea’s needs on the part of the Republic of Korea. As such, the Plaintiff’s assertion that the Defendant Republic of Korea should bear the reinforcement cost. As such, the Plaintiff’s assertion is without merit as to the instant case, where the Military Power Line Reinforcement additionally built due to the instant road work, and the main sentence of Article 65(1) of the former Road Act, is required due to other construction works, and additional construction works are to be carried out due to such need.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-tae (Presiding Judge)