주민소송의 대상과 도로점용허가 - 대법원 2016. 5. 27. 선고 2014두8490 판결 -

Abstract

The purpose of this paper is to analyze the Supreme Court judgment 2014DU8490 made on February 27, 2016. In the above judgment, whether permissions to occupy and use a road would be subject to residents' lawsuits or not was judged for the first time. Unlike the judgments in lower instances that no permission to occupy and use a road can be subject to residents' lawsuits at all, the Supreme Court judged that in consideration of the substance of permissions to occupy and use a road, some permissions to occupy and use a road of certain natures fall under the management of properties that is subject to residents’ lawsuits. This is the case with permissions to occupy and use a road that are “evaluated to be intended to realize/utilize the value in use of the road irrelevant to the original function and purpose of the road.” The Supreme Court judged the permission to occupy and use a road to be subject to residents’ lawsuits because the purpose of the permission was actually acts similar to leases. Compared to the judgments in lower instances, the Supreme Court judgment mentioned above is thought to be appropriate. First, lower courts judged that no permission to occupy and use a road can be subject to residents’ lawsuits because some roads are not owned by any local government. However, since cases where roads are not owned by any local government are exceptional situations, the exclusion of all permissions to occupy and use a road from the subjects of residents’ lawsuits is not appropriate. Exclusion of only permissions to occupy and use roads not owned by any local government is sufficient. Second, lower instances judged that since permissions to occupy and use a road are acts of road management agencies for road administration, none of permissions to occupy and use a road falls under the management of properties. However, since the purposes and forms of the management of administrative properties and permissions to occupy and use a road are diverse and some of them actually have functions similar to lease, judging permissions to occupy and use a road differently based on the substances of individual permissions to occupy and use a road. In this case, the Supreme Court opened the possibility of judicial review of administrative actions that could not be easily disputed with appeal litigations by allowing residents’ lawsuits against permissions to occupy and use a road. In the present situation where the utilization of residents’ lawsuits is low, the said judgment that actively construed the subjects of residents’ lawsuits is encouraging. The said judgment is in the same stream with a series of Supreme Court judgments that have avoided limiting the subjects of residents lawsuits too narrowly by formal construction of financial accounting actions. This tendency of the Supreme Court is thought to be desirable in that it respects the decision of the legislator that included issues subject to financial accounting in the subjects of residents’ lawsuits while ensuring that the functions and utilization of residents’ lawsuit due to overly formal construction.