[1] In a case where road works have been required due to construction works or acts other than road works by a person who is not a road management agency, whether the road management agency may directly execute the road works and claim the cost to the person who caused the road works

[2] In a case where a defect occurs in the manle due to a defective construction of the manle maintenance work supplied by the road management authority, whether the road management authority may order the contractor to perform the construction works for the person who caused the defect under Article 31 or 64 of the Road Act or impose charges on the contractor (negative)

[3] Whether the consolidation of related claim lawsuits under Article 10 of the Administrative Litigation Act requires that the original appeal litigation be lawful (affirmative)

[4] In a case where a road management agency issued a seizure disposition to collect charges upon the imposition of charges borne by an amount borne by a person responsible for the burden, and subsequently made a seizure registration, the scope of "the first appeal suit" under Articles 38 and 10 of the Administrative Litigation Act concerning a lawsuit seeking cancellation of the registration of seizure as a related claim (=Appeal appeal against the disposition imposing charges

[1] In full view of the purport of the relevant provisions, such as Articles 2, 3, 24(1), 31, 56, and 64 of the Road Act, where construction, reconstruction, and repair of a road is required due to any other construction work or act by a person other than the road management agency, the road management agency may directly execute the road construction and claim the cost to the causing person, in principle, in a case where the road management agency orders the causing person to perform the road works, or where such order interferes with the management of the road.

[2] Where a defect is caused by the poor performance of the last repair works supplied by the road management authority, and the road management authority does not impose a warranty liability on the beneficiary for unjust reduction of construction costs and damages caused by defects, etc., the road management authority shall not impose a warranty liability on the beneficiary, as long as the repair works of the defect or the cost in substitution for the repair works are required due to other works or other acts under Articles 31 and 64 of the Road Act. Thus, the road management authority shall order the beneficiary to perform the repair works of the defects or the cost in substitution for the repair works, and the road management authority shall not order the performance of the works for the repair works of the defects or impose a charge on the contractor under Articles 31 and 64 of the Road Act to receive the cost in substitution for the repair works, and the Seoul Special Metropolitan City Ordinance on the Collection of the Charges borne by the road management authority shall not impose and collect the amount borne by the burden of borne by the road under Article 64 of the Road Act (Article 1).

[3] The consolidation of related claim lawsuits under Articles 38 and 10 of the Administrative Litigation Act requires that the original appeal litigation be lawful. Thus, in a case where an appeal litigation is dismissed in an unlawful manner, the relevant joined claim shall also be dismissed as inappropriate.

[4] Where a road management agency takes a seizure disposition to collect charges based on the imposition of charges borne by an amount borne by an obligor and registers seizure following it, the interested party may file a lawsuit seeking cancellation of the registration of seizure in addition to an appeal litigation against the seizure disposition. In such a case, the original appeal under Articles 38 and 10 of the Administrative Litigation Act includes both an appeal litigation against the imposition of charges or seizure disposition.

[1] Articles 2, 3, 24(1), 31, 56, and 64 of the Road Act / [2] Articles 2, 3, 24(1), 31, 56, and 64 of the Road Act, Articles 66, and 64 of the Civil Act, Article 67 of the Ordinance on Collection of Charges Borne by Charges for Restoration of Road, Article 10 and 38 of the Administrative Litigation Act / [3] Articles 10 and 38 of the Administrative Litigation Act / [4] Articles 10 and 38 of the Administrative Litigation Act, Article 64 of the Road Act

[3] Supreme Court Decision 78Nu90 delivered on April 22, 1980 (Gong1980, 12821), Supreme Court Decision 92Nu335 delivered on December 24, 1992 (Gong1993Sang, 627), Supreme Court Decision 95Nu13708 delivered on March 14, 197 (Gong1997Sang, 1123), Supreme Court Decision 97Nu1990 delivered on November 11, 197 (Gong197Ha, 3868)

Plaintiff (Attorney Lee Won-gu, Counsel for plaintiff-appellant)

The head of Geumcheon-gu Seoul Metropolitan Government and three others

Seoul High Court Decision 99Nu7182 delivered on December 16, 1999

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. Articles 2 and 3 of the Road Act provide that roads as referred to in the Road Act include facilities, structures, and installations integrated into roads to fully utilize roads, and facilities necessary for the preservation of road structures, the securing of safe and smooth road traffic, and other facilities or structures necessary for the management of roads. According to Articles 24(1) and 56 of the Road Act, construction works concerning new construction, reconstruction, and repairs of roads are road works, and road works and their maintenance are in principle borne by the State or a local government, which is the road management agency, except as otherwise provided in the Road Act or other Acts.

On the other hand, Article 31 of the Road Act provides that, in a case where road works are required due to construction works or acts other than road works (hereinafter referred to as "other construction works or acts"), the road management agency may have the conductors of the other construction works or other acts execute the construction works, and Article 64 of the Road Act provides that, "The road management agency may have the person who is obliged to bear the expenses of the other construction works or acts bear the whole or part of the expenses of the other construction works or acts."

In full view of the purport of the provisions related to the Road Act, in a case where road works are required due to any other work or act of a person other than the road management agency, that is, construction, reconstruction and repair of a road, the road management agency may directly execute the road works and claim the cost to the person who caused such act, in principle, if the road management agency orders the person who caused the act to execute the road works or the road management.

Meanwhile, according to the reasoning of the judgment below and the records, it appears that the work executor was attached to the surface of the road for the replacement, repair, etc. of urban gas pipes, water supply and drainage pipes, oil pipelines, telecommunications pipes, etc. which are buried underground of the road. The contents of the Male Maintenance Work in this case supplied by the defendant Geumcheon-gu Seoul Metropolitan Government and Guro-gu (hereinafter referred to as the "Yeocheon-gu, etc.") who is the road management authority, are in accord with the height of the Male-gu and its surrounding road, and the damaged part is not properly attached to the surrounding road due to the destruction of the Male-gu and its surrounding road, and the height of the Male-gu road is lower than that of the 6th repair work due to the increase of the Male-gu road, etc. The 6th repair work in lieu of the Male-gu road construction work, and the 6th repair work in lieu of the Male-gu and other defects caused by the Male-gu construction work.

Therefore, the defendant Geumcheon-gu et al. may not order the plaintiff to perform construction works for the repair of defects due to the repair of defects in this case, or may not order the plaintiff to perform construction works for the polluter or impose charges to collect expenses for the repair of defects in this case.

In addition, the purpose of the Seoul Special Metropolitan City Ordinance on the Collection of Charges on Road Restoration is to prescribe matters necessary for the collection of charges borne by road works under Article 64 of the Road Act (Article 1), so long as the road management authority is unable to impose charges on the burden of borne persons pursuant to Article 64 of the Road Act, it shall not impose and collect charges on the basis of the relevant provisions of this Ordinance.

The judgment of the court below is just as it is in accordance with the above legal principles, and there is no violation of the misunderstanding of legal principles as to Article 64 of the Road Act or the provision of municipal ordinances. The grounds for appeal disputing this point

2. On the other hand, the court below held that the defendant Geumcheon-gu et al. can only claim the payment of warranty liability against the plaintiff regarding the expenses incurred in repairing defects, etc., and did not determine that the disposition of imposition of road recovery charges in this case is merely a claim for the payment under private law and is not an administrative disposition. Thus, the ground of appeal that the disposition of this case cannot be claimed the confirmation of invalidity of the disposition of this case cannot be accepted merely by misapprehending

3. The consolidation of related claims under Articles 38 and 10 of the Administrative Litigation Act requires that the original appeal shall be lawful, so if the original appeal litigation is dismissed in an unlawful manner, the relevant joined claims shall also be dismissed as not being appropriate to satisfy the requirements for the lawsuit, as otherwise alleged in the grounds of appeal.

However, in a case where a road management agency takes a seizure disposition to collect charges due to the imposition of charges borne by an amount borne by an obligor and registers seizure following it, an interested party may file a lawsuit seeking cancellation of the registration of seizure in addition to an appeal litigation against the seizure disposition. In such a case, the original appeal under Articles 38 and 10 of the Administrative Litigation Act shall be deemed to include both an appeal litigation against the imposition of charges or seizure disposition.

The court below's determination that a lawsuit seeking cancellation of a seizure registration is a lawsuit for restitution related to a disposition of imposition, etc. is just in accordance with such legal principles, and there is no error in the misapprehension of legal principles as to Articles 38 and 10 of the Administrative Litigation Act (or the ground of appeal that the court below's determination that the disposition of this case is not a judicial claim and is not an administrative disposition) is not erroneous in the misapprehension of legal principles as to Article 38 and 10 of the Administrative Litigation Act (or the judgment below's determination that the disposition of this case is not a judicial claim and that it is not an administrative disposition is not an administrative disposition). The ground of appeal as to this point is

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)