(영문) 서울고등법원 2018.10.17. 선고 2017누88666 판결

The judgment of the first instance is revoked. On October 7, 2016, the Defendant revoked the imposition of 34,894,120 won for causing traffic congestion on the building C located in Yeonsu-gu Incheon Metropolitan City, Yeonsu-gu, Incheon.

Reasons

1. Details of the disposition;

The reason why the court has used this part is as stated in Paragraph (1) of the reasoning of the first instance judgment, except that the second and sixth pages of the second instance judgment " October 17, 2016" is " October 7, 2016," and therefore, it shall be cited as it is in accordance with Paragraph (2) of Article 8 of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 37(2) of the former Urban Traffic Improvement Promotion Act (amended by Act No. 1494, Oct. 24, 2017; hereinafter referred to as the “former Urban Traffic Improvement Promotion Act”) provides that “unit charges and traffic inducement coefficient shall be determined by the Ordinance of the Ministry of Land, Infrastructure and Transport, taking into account the number of users, sales, traffic congestion degree, use of facilities, etc., and the head of a Si may adjust unit charges and traffic inducement coefficient within the scope of 100/100, taking into account the location, size, characteristics, etc. of facilities, as prescribed by the Ordinance of the relevant local government.” However, the former Ordinance on the Reduction, etc. of Traffic Inducement Charges of Incheon Metropolitan City (amended by Ordinance No. 5704, Sept. 26, 2016; hereinafter referred to as the “Ordinance”) provides that the unit charges and traffic inducement coefficient are differentiated only depending on the size and characteristics of facilities, and does not include the range of traffic congestion or the external area, which is contrary to the principle of equality.

2) Article 37(2) of the former Urban Traffic Improvement Promotion Act grants discretionary authority to raise the unit charges and traffic inducement coefficient within the scope of 100/100, taking into account the location, size, characteristics, etc. of facilities, as prescribed by municipal ordinances of the City Mayor. However, Articles 4 and 4-2 of the Ordinance of this case provide for a single unit charges and traffic inducement coefficient according to the size and type of each facility contrary to the above provisions of the Act, and completely deprives the City Mayor of the discretionary authority by prescribing only a single unit charges and traffic inducement coefficient. Accordingly, Articles 4 and 4-2 of the Ordinance of this case violate the provisions of the Act, and thus, the disposition of this case

3) If it is deemed that the unit charges and traffic-causing coefficient prescribed in Articles 4 and 4-2 of the Ordinance of this case set a maximum of discretion rather than setting a fixed amount, the defendant should have clearly stated whether or not to raise the unit charges and traffic-causing coefficient in rendering the disposition of this case. Nevertheless, the defendant did not state the above reasons for the disposition, and thus, the disposition of this case is unlawful as it violates Article 23(1) of the Administrative Procedures Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

In light of the following circumstances revealed by the relevant statutes, even if the ordinances of this case do not vary between the unit charges and the traffic inducement coefficient according to the location of the public structure, such ordinances cannot be seen as contrary to the delegation of the delegation of the delegation Act or contrary to the principle of equality. The Plaintiff’s assertion on this part cannot be accepted.

① In light of the language and text of Article 37(2) of the former Urban Traffic Improvement Promotion Act, the said provision is interpreted as an example of “the location of a facility” as one of the several factors that may be considered in raising the unit charges and the traffic inducing coefficient. Meanwhile, there may be various factors that may determine the unit charges and the traffic inducing coefficient differently in addition to the location, size, and characteristics of a facility. Meanwhile, it is difficult to establish individual differential standards for all of such factors. Under the circumstances, each local government is able to choose the factors that fit for the characteristics of its area among the various factors to be considered in order to impose charges for causing traffic congestion fairly and reasonably. Ultimately, the aforementioned factors to be considered fall under the legislative discretion of the person with authority to enact municipal ordinances, so the location of a facility cannot be viewed as necessarily reflecting the specific factors to be “the location of a facility” in municipal ordinances.

② While the municipal ordinances on charges for causing traffic congestion in Daejeon, Gwangju, and Ulsan apply the unit charges or traffic inducement coefficient separately by classifying the locations of facilities into the categories of 2 through 3 categories, the municipal ordinances on charges for causing traffic congestion differ. However, in the case of Seoul, Busan, Daegu, Incheon, and Suwon, the municipal ordinances do not separately apply the unit charges or traffic inducement coefficient by distinguishing the locations of facilities from the locations of facilities. This appears to reflect the characteristics of each local government for the purpose of fair and reasonable imposition of charges for causing traffic congestion. The contents of the instant ordinances do not seem to be exceptional even if compared with the contents of

③ Unless there exist special circumstances, the differential application of the size and characteristics of a facility is based on the floor area and use of the facility in question, and such differential application may be deemed to be based on objective and reasonable criteria. On the contrary, the location of the facility in question differs from the surrounding conditions (such as road conditions, population number, existence of other facilities, etc.) for each individual facility, and thus, it is difficult to prepare an objective evaluation scheme. In addition, the arbitrary classification of the location of the facility in a state where the objective evaluation scheme has not been established may result in a violation of equity. Therefore, it cannot be deemed that the municipal ordinance of this case did not reflect the degree of traffic congestion in the location of the facility in question, on the sole basis of such circumstance, it is deemed that it considerably loses rationality.

2) Determination on the second argument

A) Whether an administrative act is a binding act or discretionary act cannot be uniformly defined. Determination should be made by taking into account all the structure, form and language of laws and regulations that form the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself (see Supreme Court Decision 2012Du16787, Apr. 10, 2014).

In light of the provisions of relevant laws and the nature of charges for causing traffic congestion as above, Articles 4 and 4-2 of the Ordinance of this case do not set the upper limit for exercising discretion, but set the unit charges and the traffic inducement coefficient necessary to calculate the amount of charges for causing traffic congestion.

① The purpose of the traffic inducement charge is to secure investment funds for traffic improvement projects and induce the distribution of traffic inducement facilities by imposing traffic inducement charges on the owners, etc. of facilities which cause the traffic congestion in the urban traffic improvement district, which are introduced under the Urban Traffic Improvement Promotion Act (amended by Act No. 4221, Jan. 13, 1990), and to indirectly reduce traffic demand by indirectly reducing traffic demand. Such traffic inducement charges are similar to taxes in that the administrative body imposes on all persons who meet the requirements for imposition provided for in the Act without any consideration for the purpose of raising the fund.

② Article 4 of the instant Ordinance provides that “The unit charges for facilities shall be adjusted as specified in attached Table 1-2 pursuant to Article 37(2) of the Act.” The [Attachment Table 1-2] provides that “The annual unit charges for facilities, the total floor area of which exceeds 30,00 square meters, shall be determined by 200 won:80 won in 2014; 1,000 won in 2015; and 1,200 won in 2016.” Meanwhile, Article 4-2 of the instant Ordinance provides that “the traffic inducement coefficient of facilities under Article 37(2) of the Act shall be as specified in attached Table 2.” Meanwhile, Article 4-2 of the instant Ordinance provides that “the traffic inducement coefficient of facilities under Article 37(2) of the Act shall be as specified in attached Table 2.” The [Attachment Table 2] provides that the annual unit charges shall not be determined by the traffic inducement coefficient of the relevant facilities, such as “bremarket:68, 2.56, and 5.00”

(3) Article 4 of the Framework Act on the Management of Charges (hereinafter referred to as "requirements for imposition, etc.") shall be specifically and clearly provided for in Acts which form the basis of imposition and collection of charges: Provided, That the detailed requirements for imposition, etc. may be prescribed by Presidential Decree, Ordinance of the Prime Minister, Ordinance of the Prime Minister, Ordinance of the Ministry or Municipal Ordinance or Municipal Ordinance or Municipal Ordinance or Municipal Rule as delegated by the relevant Acts, as the scope specifically prescribed and delegated by the relevant Acts. (2) The legislative intent of Article 4 of the Framework Act on the Management of Charges is to provide the legal stability and predictability by clearly and clearly stipulating the requirements for imposition, etc. in advance. However, the interpretation of Articles 4 and 4-2 of the Framework Act as setting the upper limit for the exercise of discretionary power is contrary to the legislative intent of Article 4 of the Framework Act on the Management of Charges that provides for legal stability and predictability in the

④ If Articles 4 and 4-2 of the instant Ordinance interpreted that the upper limit of the exercise of discretionary authority is set, the imposition of traffic inducement charges is bound to go through the process of individually determining the appropriate unit charges and traffic inducement coefficient within the scope of the upper limit line after fully grasping the size, characteristics, etc. of the facilities subject to imposition of traffic inducement charges (if such process is not followed, it is illegal disposition that neglects the exercise of discretionary authority and is illegal). However, such imposition process is likely to infringe legal stability and predictability from the standpoint of the other party, and it is inevitable to spend excessive administrative expenses from the standpoint of the administrative body subject to imposition.

B) The purpose of statutory interpretation ought to be to find a concrete feasibility within the extent that does not undermine legal stability. Furthermore, as a matter of principle, the legislative intent and purpose of the law, its history of enactment and amendment, harmony with the entire legal order, relationship with other statutes, etc. ought to be sufficiently interpreted in compliance with the request for statutory interpretation as seen earlier by additionally applying a systematic and logical interpretation method that takes into account the legislative intent and purpose of the law, its legislative history, its harmony with the entire legal order, relationship with other statutes (see Supreme Court Decision 2016Du35755, Jul. 7, 2016).

In light of the legal principles as seen earlier, it is reasonable to view the latter part of Article 37(2) of the former Urban Traffic Improvement Promotion Act as a provision granting the City Mayor the authority to dispose of the unit charges and traffic inducement coefficient, and it is difficult to deem that the unit charges and traffic inducement coefficient may be selected within a certain scope. Therefore, even if Articles 4 and 4-2 of the Ordinance of this case provide the unit charges of traffic inducement charges and traffic inducement coefficient by intention, it cannot be deemed that the above Ordinance infringes on the discretion given to the City Mayor under the latter part of Article 37(2) of the former Urban Traffic Improvement Promotion Act. The Plaintiff’s assertion in this part is not acceptable.

① Even if a statute based on an administrative disposition uses the phrase “it may be ...... an administrative agency”, it cannot be interpreted as granting discretion to an administrative agency in all cases in which the above language and text and text are in entirety. This is because such language and text may be interpreted as a provision that grants an administrative agency the authority to dispose of in accordance with the nature of the administrative disposition or relevant statutes (see Supreme Court Decisions 2004Du6105, Oct. 27, 2006; 2012Du16787, Apr. 10, 2014).

② The latter part of Article 37(2) of the former Urban Traffic Improvement Promotion Act provides, “The head of a Si may adjust the unit charges and traffic inducement coefficient to the extent of 100/100, taking into account the location, characteristics, etc. of the facilities, as prescribed by municipal ordinances of the relevant local government.” However, in light of the fact that the traffic inducement charge actually has a similar nature to taxes, setting the unit charges and traffic inducement coefficient which are the basis for calculating the traffic inducement charge within a certain scope without any intention, is contrary to Article 4 of the Framework Act on the Management of Charges, which provides for legal stability and predictability in imposing charges, it is reasonable to interpret the phrase “the head of a Si may adjust the charges to the extent of discretion,” rather than granting the authority of disposition.

(3) The former part of Article 37(2) of the former Urban Traffic Improvement Promotion Act provides that “the unit charges and traffic inducement coefficient under paragraph (1) shall be determined by Ordinance of the Ministry of Land, Infrastructure and Transport in consideration of the number of users, sales, traffic congestion, or the use of facilities.” However, Articles 3-2 and 3-3 of the Enforcement Rule of the Urban Traffic Improvement Promotion Act, which are established upon delegation, only determines unit charges and traffic inducement coefficient as a specific amount or a specific amount, does not include a certain amount or a certain scope of amount. Meanwhile, Article 37(2) of the former Urban Traffic Improvement Promotion Act is a provision of the former Act and the latter part of Article 37(2) thereof is an exception. In light of the consistency of the system, it is reasonable to interpret the latter part of Article 37(2) of the former Urban Traffic Improvement Promotion Act to mean that the latter part of the former provision may determine a specific amount or a specific amount of money adjusted raised above the former provision, and it is difficult to interpret it to mean that the latter

(4) In light of the above provisions, as seen earlier, a local government does not enact a municipal ordinance concerning the adjustment of unit charges and traffic-causing coefficient, or when it establishes a municipal ordinance concerning the increase of only some facilities, etc., the unit charges of a specific amount under Article 3-2 and Article 3-3 of the former Enforcement Rule of the Urban Traffic Improvement Promotion Act and the traffic-causing coefficient of a specific numerical value shall be applied as they are, with respect to the facilities, etc. not governed by the municipal ordinance. On the contrary, the content of the municipal ordinance prepared pursuant to the delegation of the latter part of Article 37(2) of the former Urban Traffic Improvement Promotion Act shall not be deemed to be a provision that grants discretion to the Mayor in relation to the application of unit charges and traffic

⑤ It depends on the contents of municipal ordinances enacted by each local government to which the unit charges and the traffic inducing coefficient, which are the basis for the calculation of traffic inducement charges, are to be adjusted to a certain extent. However, delegation to municipal ordinances without any restriction on the upper limit of the unit charges and the traffic inducing coefficient is difficult in light of the provisions of Article 4 of the Framework Act on the Management of Charges. Article 37(2) of the former Urban Traffic Improvement Promotion Act limits the upper limit to “10/100” and it is interpreted to limit the scope of the upper limit to “10/100” and to limit the contents of municipal ordinances concerning the upper limit of unit charges.

3) Judgment on the third argument

Articles 4 and 4-2 of the Ordinance of this case do not set the upper limit of the exercise of discretionary authority, but set the unit charges and traffic inducement coefficient necessary for calculating the amount of traffic inducement charges. The plaintiff's assertion that the disposition of this case violates Article 23 (1) of the Administrative Procedures Act on different premise is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Judges

Judges Jeon Soo-tae

Judges Kim Jong-chul

Judges Song Il-young

Note tin

1) The former part of Article 37(2) of the former Urban Traffic Improvement Promotion Act provides for "number of users and sales" as a factor to be considered, it can be seen that there are very diverse factors to determine the unit charges and the traffic inducing coefficient differently.

2) The charges for causing traffic congestion is a kind of charge as provided in the Framework Act on the Management of Charges (Article 3 of the Framework Act on the Management of Charges and Table 1. 31 of the annexed Table 1

3) Article 4-2 of the Daegu Metropolitan City Ordinance on the Reduction, etc. of Traffic Inducement Charges provides for the increased traffic inducement coefficient only for department stores, shopping centers, discount stores, specialty stores, large-scale discount stores, general hospitals, and general business facilities. Article 4-2 of the Ordinance on the Reduction, etc. of Traffic Inducement Charges in Gwangju Metropolitan City provides for the increase of traffic inducement coefficient only for department stores and discount stores.