JongBo Kim, Installation, Management and Permission for Occupancy and Use of Road, Administrative Law Journal, No. 54 (2018), pp. 199-221.
<Abstract>
Roads are divided into roads for connecting cities and roads for smooth traffic within the city. The former is established by the Road Act and the latter by the National Land Planning and Utilization Act. Regarding the management of roads, roads are managed in accordance with the provisions of the Road Act, and roads that are urban planning facilities are managed in accordance with the provisions on the management of urban planning facilities under the National Land Planning and Utilization Act. As public property, roads are tangible facilities that are responsible for traffic functions, and the main purpose of the Road Act is protecting them. However, certain spaces on the ground and the underground of the road do not indicate the character of the facility protected and managed by the Road Act, but rather have the nature of general property regulated by State Property Act or the Public Property and Commodity Management Act. Even though it takes the form of permission to occupy and use a road in the Road Act, the permission to occupy and use such spaces is closer to the loan of general property under the State Property Act, and has the nature of fiscal conduct. Therefore, despite its form, the permission for road use, which is closer to the loan of the general property, satisfies the fiscal conduct, which is a requirement of the residents suit. As a litigation requirement of the residents lawsuit, however, the fiscal conduct does not merely determine the initiation of a lawsuit, but it still functions to limit the scope of the judgment or the scope of the litigation. Therefore, it should be considered that the object of the appeal litigation as the residents lawsuit is not the general illegality of the road use permission, but the illegality of permission as the fiscal conduct. The object of recent road use permission case is to judge if there is a financial loss of the local government by considering whether the amount fee for occupation and road use is sufficient or not. For resident lawsuits, the request for a resident's audit is a prerequisite, and the duration of the resident's request is limited to two years. Accordingly, if a lawsuit for invalidation, claim for damages, or claim for return of unjustifiable benefit which have no limitation of the filing period originally, is filed as a residents lawsuit, it can not be filed after two years from the disposition. On the other hand, if a cancellation lawsuit with a 90-day filing period is filed within two years, and considered to comply with the period, it would be undesirable in terms of imbalance with invalid litigation, etc., and unreasonable effect to extend filing periods for all cancellation cases filed as residents lawsuits from 90 days to two years.
<Keywords>
Road, the Road Act, City Planning Road, Permission to Occupy and Use a Road, Residents Lawsuit
JongBo Kim, Installation, Management and Permission for Occupancy and Use of Road, Administrative Law Journal, No. 54 (2018), pp. 199-221.
<Abstract>
Roads are divided into roads for connecting cities and roads for smooth traffic within the city. The former is established by the Road Act and the latter by the National Land Planning and Utilization Act. Regarding the management of roads, roads are managed in accordance with the provisions of the Road Act, and roads that are urban planning facilities are managed in accordance with the provisions on the management of urban planning facilities under the National Land Planning and Utilization Act. As public property, roads are tangible facilities that are responsible for traffic functions, and the main purpose of the Road Act is protecting them. However, certain spaces on the ground and the underground of the road do not indicate the character of the facility protected and managed by the Road Act, but rather have the nature of general property regulated by State Property Act or the Public Property and Commodity Management Act. Even though it takes the form of permission to occupy and use a road in the Road Act, the permission to occupy and use such spaces is closer to the loan of general property under the State Property Act, and has the nature of fiscal conduct. Therefore, despite its form, the permission for road use, which is closer to the loan of the general property, satisfies the fiscal conduct, which is a requirement of the residents suit. As a litigation requirement of the residents lawsuit, however, the fiscal conduct does not merely determine the initiation of a lawsuit, but it still functions to limit the scope of the judgment or the scope of the litigation. Therefore, it should be considered that the object of the appeal litigation as the residents lawsuit is not the general illegality of the road use permission, but the illegality of permission as the fiscal conduct. The object of recent road use permission case is to judge if there is a financial loss of the local government by considering whether the amount fee for occupation and road use is sufficient or not. For resident lawsuits, the request for a resident's audit is a prerequisite, and the duration of the resident's request is limited to two years. Accordingly, if a lawsuit for invalidation, claim for damages, or claim for return of unjustifiable benefit which have no limitation of the filing period originally, is filed as a residents lawsuit, it can not be filed after two years from the disposition. On the other hand, if a cancellation lawsuit with a 90-day filing period is filed within two years, and considered to comply with the period, it would be undesirable in terms of imbalance with invalid litigation, etc., and unreasonable effect to extend filing periods for all cancellation cases filed as residents lawsuits from 90 days to two years.
<Keywords>
Road, the Road Act, City Planning Road, Permission to Occupy and Use a Road, Residents Lawsuit