The case holding that since roads agreed upon by a housing construction project operator to bear extended costs do not constitute "entry roads" under the proviso to Article 16-2 (3) 2 of the Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas, the extended costs should be deducted in calculating the charges for intercity transport

The case holding that since a road agreed to bear the cost of expansion is not an "entry Road" under the proviso of Article 16-2 (3) 2 of the Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Presidential Decree No. 18915 of Jun. 30, 2005), the extended cost should be deducted when calculating the charges for metropolitan transport facilities on the ground that it does not fall under the "entry Road" under the proviso of Article 16-2 (3) 2 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas on the ground that it does not fall under the ground that the road agreed to bear the cost of expansion is located far away from the site of the newly built apartment site and the site of the entrance site of the newly built apartment complex, and immediately adjoining the above road

Article 11 subparag. 4 and Article 11-3(1)2 of the Special Act on the Management of Intercity Transport in Metropolitan Areas; Article 16-2(3)2 of the former Enforcement Decree of the Special Act on the Management of Intercity Transport in Metropolitan Areas (amended by Presidential Decree No. 18915, Jun. 30, 2005); Article 25(1) of the Regulations on Standards, etc. for Housing Construction

Unaccompanied Engineering Co., Ltd. (Law Firm Squa, Attorney Gyeong-won, Counsel for defendant-appellant)

Busan Metropolitan City Mayor (Attorney Jeong-woo, Counsel for defendant-appellant)

January 12, 2006

1. On October 4, 2004, the Defendant’s disposition of imposing KRW 3 billion on the Plaintiff for metropolitan transport facility charges of KRW 5,301,00 against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties:

A. Around February 8, 2002, a use farm was announced to the Defendant as an urban design district by the Busan Metropolitan City Notice No. 200-3 on Jan. 8, 2000. Around October 5, 2000, a use farm proposed to establish a district unit plan with respect to the use farm district of 185-1 won in Nam-dong, Busan Metropolitan City, which was announced as a topographical map by the Busan Metropolitan City Notice No. 200-241 on Oct. 5, 200. Accordingly, the district unit plan was modified as a district unit planning zone by the announcement No. 202-176 on Jun. 28, 2002, and the district unit plan was determined and announced by the announcement No. 2002-231 on Aug. 28, 2002.

B. In the process of planning and determination, a consultation was held on the traffic impact assessment for the formulation of district unit planning and on the traffic system improvement plan for the crosssection prior to the increase in the traffic volume as a means of use located in the vicinity, and on September 10, 2002, an agreement was made to separately settle the project cost of KRW 8 billion for the sake of expanding the section from 12m to 20m from 20m in the south-gu Busan Metropolitan City from the front of the increase in the increase in the number of light bridge to the front of the increase in the number of light bridge to the upper intersection (hereinafter “instant road”).

C. On August 5, 2004, the Plaintiff acquired the status of the project implementer from a Yongsan farm, and obtained approval from the Defendant to newly build 15 units of apartment houses with a total of 3,000 households units on the above 185-1 and 34 units on the ground of the above 3,000-1 and 34 units of land from the Defendant around the same year.

D. On October 4, 2004, the Defendant calculated charges for metropolitan transport facilities for the said housing construction project under the Special Act on the Management of Intercity Transport in Metropolitan Areas (hereinafter “Wide-Area Transport Act”) with respect to the Plaintiff, according to the method of calculation, calculated “standard construction cost per square meter 】 imposition rate 】 total floor area 】 6.16,020,467 won. The Defendant, in fact, imposed the instant charges on the Plaintiff by applying only the reduction rate of 50% on the ground that the instant roads fall under access roads for the occupants of the newly constructed apartment in this case, on the ground that the instant roads fall under the access roads for the occupants of the newly constructed apartment.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant road falls under the main arterial roads corresponding to the auxiliary arterial roads or auxiliary arterial roads, which are roads connected to the main arterial roads, and cannot be seen as access roads to the apartment complex scheduled for the new construction of the instant case. Therefore, in calculating the charges for metropolitan transport facilities, the instant charges should be deducted. In such a case, there is no metropolitan transport facilities charges to be borne by the Plaintiff.

(2) Therefore, the instant disposition that was otherwise deemed unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) Facts

The following facts may be acknowledged if Gap evidence 1-1, 2, 13, 12, 15, 17, 18-1 through 30, 4, 5, 27, 7, 23, and 27 are added to the entries and videos of Gap evidence 1-2, 12, 15, 17, 18-1 through 30, 4, 5, 27, 23, and 27, as a result of

(A) The instant road, which is a main line, was coming from the irrigation channel located in the south-gu Busan Metropolitan City, which is a main line, and through the flow channel of Seocheon-dong, is about 12 meters wide and about 2.3 kilometers wide from the front intersection in front of the extension intersection of the light intersection located in the same Gu, and consists of a part of 3-102 lines at the south-gu Busan Metropolitan City, which is determined and publicly notified as the centralized road by the Nam-gu, Busan Metropolitan City, and is linked with the roads leading to the third naval zone planned site in the west-gu, west-gu, the front intersection.

(B) The apartment site to be newly built in this case, even if the nearest point is located, is located far away from the water level as at the front place of the light intersection, which is the end of the road of this case, and 3-131 lines as at approximately 1.38 km from the front place of the light intersection to the site of the newly built apartment site of this case, will be newly constructed.

(C) At the vicinity of the road of this case, the roads of this case are directly adjacent to the Dong name Information University, Hyundai Amphak apartment complex, social social gathering walk-si maintenance industry company, Dong state automobile maintenance industry company, Dong state automobile maintenance industry company, Dongju industry company, Busan Regional Food and Drug Institute, Korea Marine and Fisheries Training Institute, Nam-gu Waste Treatment Center, Southern-gu Urban Complex, New Airport, Damban Park, and Yju Cemetery Cemetery, etc. The roads of this case are adjacent to the new roads of this case, and the new roads of this case are adjacent to the new roads of this case, and the new roads of this case are adjacent to the new roads of this case at the vicinity of the above today's 3rd Gamba Park and its surrounding sea area, such as the new apartment site of this case. In addition, the new roads of this case are adjacent residential areas, etc., such as the Mamna Park Park and its neighboring sea area, etc., such residents and users are currently utilizing the roads of this case at all times or frequently.

(D) On the other hand, with respect to the instant charges, the Plaintiff (the subject of the agreement at the beginning was a Yongsan farm) imposed the total amount of the project cost necessary for the road expansion of the instant road, set the estimated project cost of KRW 8 billion, and separately settled if the project cost is increased or decreased as a result of the construction in the future. The current estimated project cost is expected to be much more than the above 8 billion, and the Plaintiff paid KRW 3.3 billion out of the instant charges to the Nam-gu Busan Metropolitan City, Busan Metropolitan City, on December 26, 2005, which continued in the instant case.

(2) Determination:

(A) Article 11 subparag. 4, Article 11-2(2)4, and Article 11-3(1)2 of the Intercity Transport Act provide that a person who carries out a housing construction project under the Housing Act within the urban planning districts of metropolitan areas shall pay charges for metropolitan transport facilities calculated in accordance with the prescribed formula [(standard construction cost per square meter x imposition rate x total floor area x 0.5] x 0.5]. Article 16-2(3)2 of the former Enforcement Decree of the Intercity Transport Act (amended by Presidential Decree No. 18915 of Jun. 30, 2005) provides that the expenses for installation of roads, motorways, Special Metropolitan City roads, Metropolitan City roads, Metropolitan City roads, Si roads, Gun/Gu roads, or local roads under the Act and subordinate statutes in which the project is carried out shall be excluded, or all or part of the expenses for installation of roads or access roads under Article 16-2(3)2 of the former Enforcement Decree of the Intercity Transport Act (amended by Presidential Decree No. 18915 of Jun. 30, 20, etc.) and part of such expenses.

② Meanwhile, Article 9 subparag. 3 of the Rule on the Determination, Structure and Standards of Urban Planning Facilities defines the main arterial roads as “road which forms the framework of a Si/Gun, where the main areas in a Si/Gun are connected to the main areas in a Si/Gun or is to cope with mass passing traffic between a Si/Gun.” The auxiliary arterial roads as “road constituting the outermost of a neighboring residential area, which connects the main arterial roads to a mountain road or major traffic generation source in a Si/Gun, and constitutes the outermost of a neighboring residential area,” and the centralized roads as “road which connects the traffic of neighboring residential areas to the main arterial roads, and divides the inside of a neighboring residential area into a neighboring residential area.” In addition, Article 2 subparag. 7 and 8 of the Regulations on the Standards, etc. for Housing Construction, and each subparagraph of Article 4 of the Enforcement Decree of the Housing Act as “road, which is an urban planning facility under the Act on the Planning and Utilization of National Land, and is established as a road, road, etc., as prescribed by the Road Act, or a local highway., as corresponding thereto.”

(B) As above, ① The purpose of Article 16-2(3)2 of the Enforcement Decree of the Intercity Transport Act is to exclude the installation costs of roads falling under any item of Article 16-2(3)2 from the deduction of the charges for intercity transport facilities, and to exclude the deduction of the charges for traffic facilities under Article 25 of the Regulations on Standards, etc. of Housing Construction from the deduction of the charges for traffic facilities. The purpose is to secure financial resources required for the construction and improvement of intercity transport facilities in order to alleviate traffic congestion in metropolitan areas by bearing part of the charges for traffic facilities to the causing provider or beneficiary in preparation for the rapidly increasing traffic demand due to housing site development projects, etc. In addition, in the case of roads falling under any item of Article 16-2(3)2 of the Enforcement Decree of the Intercity Transport Act, the imposition of charges is the effect of contributing to the mitigation of traffic congestion in metropolitan areas and the imposition of charges is to prevent double burden by deducting the installation costs of roads. On the other hand, access roads under the provisions of Article 25 of the Regulations on Standards for Housing Construction, etc.

② Therefore, the access road under Article 25 of the Regulations on Standards, etc. for Housing Construction should be for the purpose of traffic convenience of the occupants of multi-family housing solely or mainly from the long-term road to the entrance of the relevant housing complex. Thus, even if a road falling under any item of Article 16-2 (3) 2 of the Enforcement Decree of the Intercity Transport Act passes through or is located adjacent to a housing complex, and multi-family housing residents use the road, its function shall not be regarded as a access road insofar as it is not solely or mainly for the traffic convenience of the occupants of multi-family housing (see Supreme Court Decision 2004Du4673, Sept. 3, 2004).

(C) In light of such relevant Acts and subordinate statutes and legal principles, access roads under Article 25 of the Regulations on Standards, etc. of Housing Construction refer to roads from a long-term road to the entrance of the housing complex. The roads of this case cannot be deemed as access roads to the newly constructed apartment complex of this case in light of their location and distance, such as the location and distance from the site of the apartment site scheduled for the new construction of this case and the site of its entrance. (2) In addition, the roads adjacent to the roads of this case can not be deemed as roads used by the residents and users for the transportation convenience of the occupants of the newly constructed apartment complex of this case, solely or mainly, because they are located in residential areas, including multiple apartment complexes, and residential areas, such as universities, hospitals, public facilities, various companies, amusement parks, etc., the new construction of this case cannot be deemed as roads for the convenience of the residents of the newly constructed apartment of this case. (3) The new construction of this case is determined and publicly announced as an auxiliary road of this case, which is close to the new construction of this case.)

(D) Therefore, the instant disposition that took place differently from the foregoing ought to be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Gunam-su (Presiding Judge) Kim Jong-Un