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

Cases and 1 (Law Firm Cheong rate, Attorneys Gyeong-dilution, Counsel for the defendant-appellant)

June 3, 2009

Busan District Court Decision 2008Gahap10108 Decided November 27, 2008

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

The judgment of the first instance is revoked. The judgment of the Plaintiff is revoked. The amount calculated by the ratio of 20% per annum to 128,926,793 won in the case of the Defendant Company, and 108,218,675 won in the case of the Defendant Republic of Korea, and each of the above amounts shall be paid in 20% per annum from the day following the delivery of the complaint

1. Basic facts

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance, and thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. Relevant Acts;

It is as shown in the attached Form.

3. The assertion and judgment

A. Claim as to Defendant case

(1) The parties' assertion

(A) The plaintiff's assertion

The National Road 14 and 25 lines Construction Works (hereinafter “Road Construction Works”) are pure road packaging works to resolve traffic congestion caused by the population inflow in multi-family housing areas, and the Busan Regional Land Management Agency, the original road management authority, should proceed for the traffic convenience of residents in the Kim Young-gu area, is a construction works that is separate from the construction works for the development of the Housing Site Development Project for the Kim Young-gu area. Therefore, Defendant K is a person whose occupation charges have been reduced or exempted under Article 44 subparagraph 3 of the Road Act prior to the whole amendment and who is a person whose construction charges have been reduced or exempted under the proviso of Article 65 (1) of the Road Act prior to the amendment, and is obliged to return this facility to the Plaintiff, such as optical cable, etc., which is an appurtenant construction required due to the instant road construction, which is not related to the other construction works, and thus, the Plaintiff is obligated to return the facility to the Plaintiff, such as optical cable, etc.

(B) Defendant KT’s assertion

The road works in this case are the implementer of the housing site development project of the zone in which the plaintiff was Kim Young-chul who had no confirmation packing plan as the original urban planning facilities, and the plaintiff, a cause provider, under Article 64 of the Road Act, bears the expenses of the appurtenant works in this case because the road works in this case and the appurtenant works in this case are "when the road works become necessary due to other works or other acts" under Article 65 (2) of the Road Act prior to the whole amendment, and the costs of the road works in this case executed by the plaintiff, other than the road management agency, shall be borne by the plaintiff.

(2) Determination

(3) If a person who is obligated to bear the expenses of the road works (B) if such road works (B) have occurred due to a construction project other than a road project, the expenses of such road works shall be fully or partially borne by the person who is obligated to bear the expenses of such other construction project (Article 64 of the Road Act before the wholly amended) and road works (B) which have no causal relationship with the construction project (Article 64 of the Road Act before the wholly amended), and the expenses of such appurtenant works (C Works) shall be borne, in whole or in part, by the person who is liable to bear the expenses of such appurtenant works (Article 65 (1) of the Road Act) and, in this case, the expenses of such appurtenant works (Article 65 (1) 3 of the Road Act) which have been incurred before and after the first implementation of the road works (Article 65 (1) of the Road Act). The expenses of such appurtenant works shall be borne, in whole or in part, by the person who is obligated to bear the expenses of such appurtenant works (Article 65 (1) of the Road Act).6).

According to the facts acknowledged earlier, the construction of the instant road, including optical cables, was additionally constructed due to the instant road construction (BB construction) or the fact-finding on interesting construction among the stock companies of the court of first instance, and the following circumstances are acknowledged as follows. In other words, according to the approval conditions that the Plaintiff shall separately re-consult with the road management agency in the direction of the “the construction of additional lanes for interesting construction from among the stock companies of the court of first instance” added to the designation and alteration of the area planned for the development of the instant road site to be Kim Young-young area and the approval for the development plan, the Plaintiff’s consultation with the Busan Regional Land Management Office about the construction of the instant 4th line, which is confirmed to be 6th line. Accordingly, the Plaintiff’s assertion that the construction of the instant road, which was executed on August 7, 2003 by the Busan Regional Land Management Office, should not be deemed to have been conducted for the purpose of construction of the instant road and the construction of the instant road, which was conducted for the purpose of construction of the instant road development project.

B. Claim against Defendant Republic of Korea

(1) As seen earlier, the Plaintiff asserted that the instant road works are separate from the construction works for the development of a housing site development project for the Kim Young-min area, and that the Defendant Republic of Korea, who had been granted a reduction of or exemption from the occupation and use fees under Article 44 subparagraph 3 of the Road Act prior to the whole amendment, should bear the expenses for military power line reinforcement works, which are appurtenant works required due to the instant road works, pursuant to the proviso of Article 65 (1) of the Road Act prior to the amendment. As such, as determined in the above 3.A. (2) of the Road Act, the instant road works were needed due to the other construction works executed by the Plaintiff, and the Defendant Republic of Korea does not constitute a person whose occupation and use fees have been reduced or exempted under Article 44 subparagraph 3 of the Road Act prior to the whole amendment. Therefore, the Defendant’

(2) The plaintiff asserted that the defendant Republic of Korea should bear the construction cost pursuant to the main sentence of Article 65 (1) of the Road Act before the whole revision of the Road Act, which caused the necessity of the reinforcement of the military power line, and thus, the defendant Republic of Korea should bear the construction cost. Thus, according to the basic facts, the reinforcement of the military power line is an additional construction due to the road construction of this case, and the defendant Republic of Korea first raised the necessity of the above construction, it cannot be viewed otherwise due to the circumstance that the defendant Republic of Korea first raised the necessity of the above construction, and it cannot be applied to this case corresponding to the case where the construction work requires another construction work due to the construction work implemented by the defendant Republic of Korea, and the additional construction work implemented by the said necessity is not applicable. Thus, the plaintiff's

(3) The plaintiff asserts that the defendant Republic of Korea should bear the expenses for reinforcement of the military power line according to the subsidiary conduits at the time of extension of the permission to occupy and use the road or the extension of the permission period. As seen earlier, since the reinforcement of the military power line of this case is additionally constructed due to the road construction of this case (CC), in principle, the plaintiff should bear the expenses for reinforcement of the military power line of this case before the whole amendment. However, if there is any assistant who has already imposed the permission to occupy and use the road, the above provision may be excluded in accordance with its contents (Article 65(1) of the Road Act only stipulates that the assistant who has already been imposed the permission to occupy and use the road shall be preferentially applied to the Road Act, but the same applies to the application of Articles 65(2) and 64 of the Road Act (the same applies to the application of Articles 65(2) and 64 of the Road Act).

Therefore, in full view of the purport of the Sub-Section 1, B, and B, and the overall purport of the arguments and arguments as to the purport of the Sub-sections imposed on Defendant Republic of Korea’s permission, the “this construction project” which the Defendant Republic of Korea is responsible at the time of permission to occupy and use the road refers to the construction of the underground conduits, which is the purpose of the permission to occupy and use the road, and the “this construction project” refers to the construction of the underground conduits, which is the purpose of the permission to occupy and use the military power lines at the time of extension of the period of permission to occupy and use the military power lines of this case, if requested by the road management authority at the time of the extension of the period of permission to occupy and use the military power lines of this case, it cannot be deemed as a

(4) The Plaintiff asserted that, in the instant case where the Defendant Republic of Korea requested the reinforcement of power lines instead of the removal of power units on the ground that the ground was weak due to other circumstances while the Plaintiff requested the removal of power units due to the budgetary circumstances of the Defendant Republic of Korea, the above construction costs should be deemed as obstacles to the above construction costs. Thus, it is difficult to view the cost of the reinforcement of power lines as obstacles to the extension period of the above occupancy permit period solely on the ground that the Plaintiff’s above assertion alone does not constitute the cost of removal of power units, and there is no other evidence, therefore, the Plaintiff’s above assertion is without merit.

(5) The plaintiff is a public document that passed through the internal resolution of the defendant Republic of Korea and expressed the plaintiff's public intent to bear the cost of the construction as secured by the budget, and the plaintiff trusted that the defendant Republic of Korea is obligated to pay the cost of the reinforcement of the military power line. Thus, the defendant Republic of Korea claims that the plaintiff is obligated to pay the cost of the reinforcement of the military power line according to the above agreement with the plaintiff. Thus, the plaintiff's 14-6 and 8-8's transfer of the military power line shall seek understanding as it is difficult to remove the plaintiff's relocation request due to budgetary relations or requires a considerable period of time. And the evidence No. 14-15's transfer of the plaintiff's transfer of the power line is being carried out with the plaintiff's transfer of the power line section of the exclusive power line. In light of the fact that the plaintiff's transfer of the power line 15-15's transfer of the plaintiff's transfer of the power line, each of the above evidence alone is insufficient to acknowledge the plaintiff's public opinion or agreement.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit, and the judgment of the court of first instance is just, and all appeals against the defendants are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Park Jae-young (Presiding Judge)