[1] Criteria to determine whether the State or a local government is a de facto controlling entity for a road constructed in the form of a resident self-help project

[2] The case affirming the judgment of the court below that the village resident is not a local government but a managing entity of access to the village and a construction implementer

[1] A person, other than the State or a local government, who actually constructs a road as a self-help project, or actually constructs, maintains, or repairs the existing road. However, even if a road is constructed in the form of a self-help project, if it is acknowledged that the State or a local government bears a substantial portion of the construction cost, and is in common use for public traffic after construction, it can be deemed that the road is actually under the control of the State or a local government. However, even if the State or a local government bears part of the construction cost of a self-help project, it cannot be readily concluded that the occupying entity is the State or a local government.

[2] The case affirming the judgment of the court below that the road management authority and the packing contractor are not the competent local government but the village residents in case where the village residents purchased part of the road site as the village fund and directly constructed the village access road, and all of their liability for compensation due to the defect were made their own, and the competent local government only subsidized part of the project cost and did not directly supervise or participate in the process

[1] Articles 192, 741, and 758 of the Civil Act / [2] Articles 192 and 758 of the Civil Act

[1] Supreme Court Decision 90Da5795 delivered on March 12, 1991 (Gong1991, 1164), Supreme Court Decision 90Da14522 delivered on May 14, 1991 (Gong1991, 1619), Supreme Court Decision 91Da21206 delivered on September 24, 1991 (Gong1991, 2607), Supreme Court Decision 92Da9692 delivered on October 9, 1992 (Gong192, 3107)

Newdong Fire and Marine Insurance Co., Ltd. (Law Firm Jinju General Law Office, Attorney Kim-Ba, Counsel for defendant-appellant)

United Kingdom of America

Changwon District Court Decision 95Na8144 delivered on May 9, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

The form of occupation of a road by the State or a local government can be divided into occupation as a road management authority and occupation as a de facto controlling entity. In fact, if a road zone is determined under the Road Act or a road is constructed by the implementation of an urban planning project under the Urban Planning Act, occupation as a road management authority may be recognized from that time. However, if the State or a local government, even if the construction of a road is not performed by the State or a local government under the Road Act, is de facto extending, maintaining, or maintaining the existing road, or maintaining the road, such road is in fact controlled by the State or a local government, and it can be deemed that such road is de facto controlled by the State or a local government. Therefore, if a person other than the State or a local government actually constructs, maintaining, or repairing a road, it cannot be deemed that the de facto controlling entity of the existing road is the State or a local government, even if it is actually constructed in the form of residents’ self-help project, it can be deemed that the State or a local government bears a considerable portion of the construction cost, and thus, occupies or local government is not deemed as a State or local government.

According to the reasoning of the judgment below, the court below acknowledged that the road of this case was established in the section of 3.3 km from the national highways to the Cheongcheon-gun Cheongcheon-gun, the original gravel length, but Defendant Gun received a request for subsidization of project expenses from the above village residents through the above village residents around the end of December 1991, and it was accepted as supporting materials for the construction, completion, estimate, etc. of the above village residents, and it did not err in the misapprehension of legal principles as to the above construction or construction of the above 4th floor of the above Gun, and it cannot be concluded that the above Gun was the main owner of the road of the above 3.3 km-gun-gun, and it cannot be concluded that it was not the main owner of the road of this case or the operator of the above 10th village, and it cannot be concluded that it was in violation of the legal principles as to the above 1th village and the above 2nd village as the main owner of the 4th village of this case.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)