(a) Whether Article 21(3) of the Ordinance on the Implementation of Land Readjustment and Rearrangement Projects of the Namnam-ri District, which provides that the basic area shall not exceed 1/3 of the previous land area in de facto designating a private road as a reserved land for replotting, violates the provisions of Article 23(3) of the Constitution, or Articles 48 and 53(1) of the Land Readjustment and Rearrangement Projects Act;

B. The meaning of "private roads" under Article 6-2 (2) 2 of the Enforcement Rule of the Public Compensation for Losses and Losses.

A. Article 21 (3) of the Ordinance on the Implementation of a Land Readjustment Project in the Nowon-gu Seoul Special Metropolitan City provides that "the standard area calculated under Article 6-2 (2) of the Enforcement Rule of the Public Land Readjustment Project Act shall apply to private roads, ditches, etc. used as roads, ditches, etc." In accordance with the provisions of Articles 48 and 53 (1) of the Land Readjustment Project Act, and Article 3 of the Land Expropriation Act, other standards than those stipulated in Article 48 of the Land Expropriation Act shall apply to road sites. Meanwhile, Article 6-2 (2) 2 of the Enforcement Rule of the Public Land Readjustment Project in the Public Land Expropriation Project Act provides that the appraisal of land shall not exceed 1/3 of the appraised value of neighboring land in cases of actual private roads such as roads, ditches, etc. which are used as roads, ditches, etc., shall not exceed 3/10 of the appraised value of neighboring land, and the purport of Article 21 (3) of the above Ordinance shall not be construed as a legitimate provision of Article 38 (3) of the Constitution.

(b) The de facto private road under Article 6-2 (2) 2 of the Enforcement Rule of the Public Compensation for Loss and Compensation for Loss refers to the road that the landowner opened by himself in order to enhance his own interest, and even if part of the land is offered to many and unspecified persons for a certain period, it does not correspond to the land in which the landowner may exercise its ownership and

(a)Paragraph 2(a) of Article 6bis(2)2(a) of the Enforcement Rule of the Special Act on the Compensation for Public Loss and Compensation for Loss; Article 21(3) of the Ordinance on the Implementation of the Special Act on the Land Readjustment and Rearrangement Projects in the Namnam-ri District; Article 23(3) of the Constitution; Articles

B. Supreme Court Decision 86Nu760 delivered on February 24, 1987 (Gong1987,581) 89Nu1056 delivered on September 12, 1989 (Gong1989,1511) 92Da25045 delivered on November 10, 1992 (Gong193,84)

[Judgment of the court below]

Cheongnam-do Head of Chungcheongnam-do

Seoul High Court Decision 92Gu18322 delivered on April 8, 1993

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

We examine the grounds of appeal.

On the first ground for appeal

1. Article 32(1) and (2) of the Land Readjustment Project Act provides that when a local government, etc. implements a land readjustment project, etc., the Minister of Construction and Transportation shall determine the implementation rules and project plans, and obtain authorization for the implementation thereof from the Minister of Construction and Transportation. If a local government is a local government, the implementation rules shall be prescribed by ordinances of the local government. Article 22 of the Enforcement Decree of the same Act provides that the above implementation rules shall be prescribed by the above implementation rules. In light of the records, the defendant's review of the contents of the Ordinance for the Implementation of Land Readjustment Project of the Land Readjustment Project of the Land Readjustment Project of the Land Readjustment Project of the Seoul Special Metropolitan City, the Measures Hawon-ri

2. Chapter 3 of the above Ordinance provides that "the standard area calculated under Article 6-2 (2) of the Enforcement Rule of the Special Act on the Acquisition of Land for Public Use, which is the cause of use as roads, ditches, etc., shall apply." Article 48 of the Land Readjustment Promotion Act provides that "the land substitution plan shall be reasonably determined taking into comprehensive account the location, land category, area, soil, water quality, utilization situation, environment, and other matters of the previous land and substitute land," and Article 53 (1) of the same Act provides that "the standards under Article 48 may not apply to the land substitution plan for public facilities falling under any of the subparagraphs of Article 3 of the Land Expropriation Act concerning the location, area, etc. of public facilities falling under any of subparagraphs of Article 3 of the same Act, which are included in public facilities falling under any of subparagraphs of Article 3 of the Land Expropriation Act, shall not be applied to the land substitution plan for public facilities falling under any of the above Article 48 of the same Act, and thus it shall not be applied to the land substitution for other public facilities than those under Article 13 of the same Act.

3. Therefore, the decision of the court below to the same purport is correct, and there is no error of law by misunderstanding legal principles as pointed out in the theory of lawsuit.

The precedent of the theory of lawsuit is not appropriate in this case, and it is not reasonable to discuss.

On the second ground for appeal

1. The de facto private road under Article 6-2 (2) 2 of the Enforcement Rule of the Special Act on the Compensation for Public Loss and Compensation for Loss of Land, refers to the road that the landowner opened for the benefit of his own land, and even if a part of the land is offered to many and unspecified persons for a certain period, it does not constitute the land in which the landowner may exercise ownership and prohibit the passage of the land (see, e.g., Supreme Court Decisions 83Meu1747, Dec. 13, 1983; 86Nu760, Feb. 24, 1987; 89Nu1056, Sept. 12, 1989; 89Nu1056, Sept. 2, 198). Meanwhile, Article 6-2 (3) of the Enforcement Rule provides that the de facto private road under paragraph (2) refers to the road that the landowner has established for the benefit of his own land and is not determined by the urban planning after the construction of the private road.

2. According to the reasoning of the judgment below, the court below recognized the fact that the land of this case (392m2, e.g., the address omitted) was not used for agriculture from around 1986 to around 1986, and determined that the land of this case constitutes "the de facto private road" under Article 6-2 (2) 2 of the Enforcement Rule of the Act on Special Cases. However, as seen above, even if the land of this case was used for the passage of neighboring residents as the actual road recognized by the court below, it cannot be concluded that it constitutes the de facto private road under the Enforcement Rule of the Act on Special Cases, even if it was used for the passage of neighboring residents.

If the owner of the land at the time of opening the land of this case does not own own to promote his own interest, or if a part of the land is offered to many unspecified persons for a certain period, it cannot be deemed as a de facto private road under the Enforcement Rule of the Act on Special Cases concerning the Settlement of Land, and according to the records, it can be known that there was an urban planning decision as to the whole land of this case. Thus, the court below should determine whether the land of this case constitutes a de facto private road within the above meaning, after examining whether there was a road decision according to the urban planning as to the land of this case and the time when the road of this case was established.

3. The judgment of the court below is erroneous in the misunderstanding of legal principles as to de facto roads under Article 6-2 (2) 2 of the Enforcement Rule. The grounds for appeal are with merit within the scope of pointing this out.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)