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(영문) 대구고법 1983. 1. 31.자 82라21 제3민사부결정 : 확정

[자동차통행방해금지등가처분신청사건][고집1983(민사편),91]

Main Issues

Whether assistance may be provided in an appeal procedure

Summary of Decision

An intervenor may participate in a lawsuit in order to assist a party in a case where the other party has a legal interest in the result of the lawsuit while the lawsuit is pending, and the decision-making procedure does not have the structure of the opposing party. Thus, the appeal procedure shall not fall under “in the continuation of the lawsuit” under Article 65 of the Civil Procedure Act, and therefore, shall not participate in the appeal procedure.

[Reference Provisions]

Article 65 of the Civil Procedure Act

Reference Cases

Order 63Du12 dated September 22, 1964 (Article 65(4)804 of the Civil Procedure Act), Decision 73Ma849 dated November 15, 1973 (Article 65(7)804 of the Civil Procedure Act, Article 65(7)804 of the Civil Procedure Act, Article 105's house 21 3171)

Applicant, appellant

Applicant

Respondent, respondent, respondent

Respondent 1 and one other

Intervenor joining the Intervenor

An intervenor;

The first instance

Busan District Court Order (82Ka13920)

Text

1. The appeal is dismissed;

2. The supplementary intervenor's request for intervention shall be dismissed;

3. The costs of appeal shall be borne by the appellant, and the costs of appeal due to the intervention shall be borne by the assistant intervenor.

Purport of appeal and purport of application

The original decision shall be revoked.

The respondent shall not interfere with the traffic of motor vehicles until the port farm located in the Gan-gun, Kimhae-gun (number 1 omitted) on the road marked in the annexed drawing indication (A).

The respondent shall remove, within three days from the date of the determination and delivery, the wire-light shield, which has the motor vehicle entrance in the same drawing (a) display part.

If the respondent fails to perform the same removal work within the above period, the respondent may have the head of the office belonging to the Busan District Court delegated by the applicant remove it in an appropriate manner.

Expenses incurred in filing an application shall be borne by the respondent, etc. in both the first and second instances.

Reasons

(1) Determination as to an applicant’s application

(1) In full view of the fact that the applicant’s 6th anniversary of the above 4th anniversary of the fact that the 10th anniversary of the above 6th anniversary of the forest land number was no longer than 6th anniversary of the above 4th anniversary of the fact that the 6th anniversary of the above 4th anniversary of the fact that the 5th anniversary of the forest land number was no longer owned by the applicant, the 1th anniversary of the above 4th anniversary of the fact that the 5th anniversary of the above 4th anniversary of the forest land number was no longer owned by the 5th anniversary of the above 4th anniversary of the fact that the 5th anniversary of the above 4th anniversary of the forest land number was no longer owned by the 5th anniversary of the above 4th anniversary of the fact that the 5th anniversary of the above 4th anniversary of the forest land number was no longer owned by the applicant, the 5th square meters of the forest land number was no longer likely to interfere with the passage of the 5th forest land by the applicant.

However, according to the provisions of Article 219 of the Civil Act, in a case where no passage is available between a certain land and a public road for the use of the surrounding land, the owner of the surrounding land can pass through the surrounding land if no passage is available or excessive cost is required without passing through or passing through the surrounding land, and if necessary, he may pass through the surrounding land. However, in this case, according to the supporting documents as seen above, a passage for the use of the above forest owned by the applicant (transport of building materials for construction of money), which is necessary for the use of the above forest (land for construction of money), is already installed in (A) in 1976 and has contributed to (E) points around the same map except for the annexed drawing (A). In this case, the actual inconvenience of using the surrounding land from E to (c) points in the applicant's forest owned by the applicant can be seen to be more close to the passage even if there is any inconvenience.

Thus, the applicant does not have the right to be preserved for the passage of the above (A) part of the passage to the motor vehicle. Thus, the applicant's application of this case is without room to look at the existence of necessity of preservation.

(2) Determination as to the Intervenor’s motion.

The supplementary intervenor asserted that the supplementary intervenor participated in the lawsuit in this case in order to assist the respondent since the plaintiff's forest land is a forest that is separate from the forest land in this case, and therefore, the supplementary intervenor may participate in the lawsuit in order to assist the intervenor's participation in the case where the plaintiff has a legal interest in the result of the lawsuit between others during the lawsuit, and the party's structure in this lawsuit does not conflict with that of the party's decision-making procedure. Thus, the supplementary intervenor's participation in this case cannot be deemed unlawful since the plaintiff and the respondent have a significant interest in the result of the lawsuit in this case. Thus, the supplementary intervenor's participation in the lawsuit in this case is a forest that is separate from the forest land in this case. Thus, the supplementary intervenor in this case has a legal interest in the result of the lawsuit between others.

(3) Therefore, the original decision that is to dismiss the petitioner's application of this case is without merit, and the decision is just and without merit, and the applicant's appeal is dismissed. The intervenor's application for intervention at the trial is unlawful and dismissed, and the costs of appeal are borne by the losing party, and the costs of appeal are to be borne by the losing party and the costs of appeal are to be borne by the supplementary intervenor as per the order.

Judges Seo fixed-term (Presiding Judge) and Park Dong-Jak