[1] Requirements for becoming a road subject to the Road Act

[2] In a case where an administrative agency imposed indemnity on a building owner who has partially invadedd a road pursuant to Article 94 of the Road Act, the case holding that the court below erred in the judgment below which held otherwise on the ground that the above road cannot be deemed as a road subject to the Road Act

[3] Whether it is permissible for a disposition agency to add or modify only the statutes based on the disposition to the extent that it does not change the specific facts identified at the time of the disposition (affirmative in principle), and where a change in the statutes based on the disposition is prohibited

[4] In a case where an administrative agency imposed indemnity under Article 94 of the Road Act on a person who occupied and used a road without permission for occupation and use, but filed a lawsuit seeking revocation of such disposition, and then the relevant road does not fall under the road subject to the Road Act, the court held that the court below erred in the misapprehension of legal principle on the ground that the modification of relevant laws and regulations is nothing more than a separate disposition that cannot be recognized as identical to the disposition imposing indemnity under Article 94 of the previous Road Act, and thus, it cannot be permitted since the modification of relevant laws and regulations is different from a separate disposition that cannot be recognized as identical to the disposition imposing indemnity

[1] A road is a road subject to the application of the Road Act only when it is in the form of a road, and is determined and publicly announced as a route or a road zone under the Road Act, or when it is determined and publicly announced as a road under the Urban Planning Act or the Urban Redevelopment Act. The mere fact that it is actually used as a road shall not be deemed as a road subject

[2] In a case where an administrative agency imposed indemnity pursuant to Article 94 of the Road Act on the ground that the pertinent road is occupied without permission for use or profit-making, the case holding that the court below erred by misapprehending the legal principles on the ground that the above road constitutes a road subject to the Road Act, on the ground that it constitutes a road subject to the application of the Road Act, on the ground that there was no evidence to acknowledge that the above road was determined and publicly announced as a route designation or recognition and a road zone under the Road Act, and that the mere fact that it was actually used as a road for the traffic of the general public.

[3] Unless there are special circumstances, whether an administrative disposition is legitimate should be determined on the basis of the reasons at the time of the disposition, and to the extent that the disposition authority does not change the specific facts identified at the time of the disposition, adding and amending only the statutes based on the disposition cannot be deemed as an addition of the new grounds for disposition. In such a case, it may be unreasonable for the disposition authority to judge the legality of the disposition by applying the statutes added and modified after the disposition as to the specific facts identified at the time of the disposition. However, if the change of the relevant statutes does not differ from that of the previous disposition

[4] The case holding that the court below erred in misapprehending the legal principle as to the imposition of indemnity under Article 94 of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009; hereinafter the same), Article 81 of the former Public Property and Commodity Management Act (wholly amended by Act No. 1006 of Feb. 4, 2010; hereinafter the same), and its Enforcement Decree, in case where the owner of Jongno-gu Seoul Metropolitan Government asserted the change of Article 81 of the former Public Property and Commodity Management Act (wholly amended by Act No. 1006 of Feb. 4, 2010; hereinafter the same), since the pertinent provision of the Road Act and the former Public Property and Commodity Management Act differs from the legislative purport of the Act, and compared with the pertinent provision, the purpose of collecting indemnity, standard amount of calculation, discretionary discretion, collection procedure, etc., which are different from those of the previous Road Act.

[1] Articles 2 and 8 of the Road Act / [2] Articles 2, 38, and 94 of the Road Act / [3] Article 19 of the Administrative Litigation Act / [4] Article 94 of the Road Act, Article 51 of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009); Article 56 of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009); Article 81 of the former Public Property and Commodity Management Act (wholly amended by Act No. 1006, Feb. 4, 2010); Article 81 of the former Enforcement Decree of the Public Property and Commodity Management Act (wholly amended by Presidential Decree No. 22319, Aug. 4, 2010); Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 92Da22725 delivered on December 8, 1992 (Gong1993Sang, 423) Supreme Court Decision 94Nu2176 delivered on September 30, 1994 (Gong1994Ha, 2884) / [3] Supreme Court Decision 87Nu632 delivered on December 8, 1987 (Gong1988, 294)

Plaintiff (Appointed Party) (Attorney Jin-hun et al., Counsel for the plaintiff-appointed party-appellant)

The head of Jongno-gu Seoul Metropolitan Government (Law Firm Doo, Attorneys Jeong-soo et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2010Nu11032 decided November 12, 2010

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

The grounds of appeal are examined.

1. As to the fact that each of the roads of this case is not subject to the Road Act

A road shall be in the form of a road, and only when a road zone is determined and publicly announced under the Road Act, or when a road zone is determined and publicly announced, the road shall be subject to the application of the Road Act (see, e.g., Supreme Court Decisions 92Da22725, Dec. 8, 1992; 94Nu2176, Sept. 30, 1994).

According to the reasoning of the judgment of the court below, each of the roads of this case has already been used as a road for the passage of the general public even before the part of each of the roads of this case was invaded by the road of this case, but there is no data to recognize that the designation or recognition of routes of this case has been publicly announced and the road zone has been determined and publicly announced. In light of the above legal principles, each of the roads of this case is not subject to the Road Act merely because each of the roads of this case was actually used as a road for the passage of the general public.

Nevertheless, the court below held that each of the roads of this case constitutes a road subject to the Road Act, and thus the imposition of indemnity of this case under Article 94 of the Road Act was lawful. The court below erred by misapprehending the legal principles as to the roads subject to the Road Act, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the fact that the amendment of the law on the grounds of the disposition imposing indemnity of this case is not permitted

The issue of whether an administrative disposition is legitimate should be determined on the basis of the reason at the time of the disposition, unless there are special circumstances. The disposition agency’s addition or modification of the laws and regulations only to the extent that it does not change the specific facts identified at the time of the disposition cannot be deemed a addition of the new reason for disposition. Thus, in such a case, it is unreasonable for the disposition agency to judge the legality of the disposition by applying the Acts and subordinate statutes added or modified after the disposition as to the specific facts stated at the time of the disposition (see Supreme Court Decision 87Nu632, Dec. 8, 1987, etc.). However, if the change of the relevant laws and regulations does not differ from that of the previous disposition that cannot be

According to the reasoning of the lower judgment and the record, the Defendant asserted that Article 81 of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same) and the Enforcement Decree thereof are the State’s portion among each of the roads of this case, and Article 81 of the former Public Property and Commodity Management Act (wholly amended by Act No. 1006, Feb. 4, 2010; hereinafter the same) and its Enforcement Decree in preparation for the case where each of the roads of this case was subject to imposition of indemnity under Article 94 of the Road Act on the condition that each of the roads of this case was subject to the application of the Road Act, and the owner of Jongno-gu Seoul Metropolitan Government is the State’s portion.

In light of the aforementioned legal principles, the pertinent provision of the Road Act, the former Act, the Act, the Act, and the Act on the Management of Public Property and Commodity differs from the legislative purport thereof. In comparison with the pertinent provision, inasmuch as the purpose of collecting indemnity, the standard amount of calculation thereof, the discretion of collection, and the collection procedure are different, making changes in the relevant statute different from that of the instant disposition that cannot be recognized as identical to the imposition of indemnity under Article 94 of the former Road Act, and thus, it is not permissible to change the relevant provision as alleged by the

Nevertheless, the lower court determined that the disposition of imposing indemnity of this case was lawful by applying the former State-owned property statute and the former Public Property and Commodity Management Act as alleged by the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on addition and modification of the statutes based on the administrative disposition, thereby adversely affecting the conclusion of the judgment. The ground of appeal

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Selections: Omitted

Justices Cha Han-sung (Presiding Justice)