[양도금지등가처분청구사건][고집1970민(1),204]
Cases where several persons jointly obtain a reclamation license and necessary joint litigation relations
If several persons obtain a reclamation license under the Public Waters Reclamation Act, the right to reclaim is deemed to be in the joint ownership (or joint ownership) relationship of the joint holders, so if a lawsuit is filed with the right to reclaim belonging to such joint ownership as the object of the lawsuit, all the persons in the license holder should file the lawsuit.
Articles 61 and 63 of the Civil Procedure Act
November 25, 1969, 65Da1352 decided Nov. 25, 1969 (Supreme Court Decision 847 decided Nov. 8, 196; Supreme Court Decision 17No.36 decided Nov. 36, 200)
Applicant
Respondent
Gwangju District Court Decision 64Ka255 decided Jan. 1, 198
The judgment of the first instance shall be revoked.
An applicant shall be dismissed.
The total costs of litigation shall be borne by the applicant.
The respondent is prohibited from performing all acts that transfer the public waters reclamation right to another person, such as transfer of it to the public waters reclamation right in the Young-si Dopo-si, the Respondent is prohibited from performing the act of changing the name of the person who obtained the license for the reclamation of public waters.
In addition, until the final and conclusive judgment on the merits is rendered, the person in charge of the field project for the information on 260 information shall be determined as the applicant.
Expenses for application shall be borne by the respondent.
The same shall apply to the order.
Before examining the legitimacy of the merits, we examine the respondent's main defense.
The plaintiff's application of this case is clearly recorded in the record that the respondent and 19 persons, et al. sought provisional disposition such as the purport of the application in order to preserve the claim on the ground that there was a claim for confirmation, etc. of reclamation right from the Minister of Agriculture and Forestry under the Public Waters Reclamation Act on the premise that the right of reclamation of public waters has been acquired by transfer of the purport of the application. If several persons have obtained a reclamation license under the Public Waters Reclamation Act, it is reasonable to regard that the right of reclamation is in a joint (or joint ownership) joint-ownership relationship. In a lawsuit to bring a lawsuit with the right of reclamation belonging to such joint-ownership (or joint ownership) as the object of the lawsuit, all of the licensed persons should be the necessary co-litigants. The above case also requires co-litigants as in the case of the lawsuit on the provisional disposition of the joint-use right. According to the No. 1 certificate of No. 4 without dispute, the person who obtained the license of this case before the date of the original change in the contents of No. 4 and the remaining representative of the applicant cannot be seen as the plaintiff's.
Therefore, as the petitioner's main application is inappropriate, the decision of the court of first instance, which has different conclusions, is unfair, and thus, the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.
[Attachment List]
Judges at a fixed discretion (Presiding Judge)