[2] Whether an independent party intervenor has a benefit of confirmation to seek confirmation of the Plaintiff’s non-existence of rights or legal relations against a third party, on the ground that the Plaintiff asserts the rights or legal relations against a third party that are incompatible with his/her own assertion (negative)

In order for an independent party intervenor to participate in a lawsuit seeking the right under the former part of Article 79(1) of the Civil Procedure Act among interventions by the independent party, an independent party intervenor must make a claim incompatible with the plaintiff's claim on both parties to the lawsuit to be participated first or both parties to the lawsuit and the other party to the lawsuit, and his claim may be established by the assertion itself in addition to the benefit of the lawsuit. The intervention in the prevention of corruption under the latter part of Article 79(1) of the Civil Procedure Act is objectively recognized to have an intention to harm the intervenor through the lawsuit, and it is permitted in a case where it is acknowledged that the plaintiff and the defendant have an intention to harm the intervenor through the lawsuit, and it is recognized that the intervenor's rights or legal status may be infringed (see Supreme Court Decision 2009Da42130, 42147, 42154, 42161, Oct. 1

In addition, a lawsuit for confirmation is not necessarily limited to a legal relationship between the parties, but can be the object of the legal relationship between one of the parties and a third party or between the third party. However, in order to have the interest of confirmation of the legal relationship, there is a need to immediately confirm the legal relationship in accordance with the judgment of confirmation that is the object of confirmation in order to remove the risk or non-disclosure. Furthermore, it should be the most effective and appropriate means to confirm the legal relationship. Therefore, in case where the right or legal status of an independent party intervenor is threatened or interfered with by being denied by or against the plaintiff, the independent party intervenor must confirm his/her right or legal relationship against the plaintiff. Thus, it is difficult to seek confirmation that the plaintiff's right or legal relation against the third party is nonexistent by asserting that the plaintiff's right or legal relation against the third party which cannot coincide with his/her own assertion. Even if the intervenor in the lawsuit for confirmation is judged in favor of the party, it cannot be said that the judgment does not become final and conclusive and that it does not affect the plaintiff's right to the plaintiff.

In this case, the plaintiffs asserted that the co-owner and the defendant agreed to use the forest of this case as a road construction site at the time of consultation on partition of co-owned forest land as to the forest of this case before partition, and filed a motion against the defendant for consent to construct the road in the forest of this case pursuant to the above agreement. Accordingly, the intervenor originally owned co-ownership by the intervenor, but the forest of this case before partition, in which the forest of this case was under the forest of this case, was originally owned by the intervenor's co-ownership, after completing the registration of change of the name of the intervenor's owner's holder's indication as to the change of the registered owner's indication, and the plaintiff's co-ownership right as to the forest of this case was under the premise that the intervenor had a co-ownership right as to the forest of this case, which might interfere with the above co-ownership right. < Amended by Presidential Decree No. 18880, Jan. 1, 200>

First, the Intervenor’s claim is that the Intervenor has the right to express his/her consent to the construction of a road as an owner of the forest of this case, and the assertion itself is consistent with the Plaintiff’s claim seeking consent to the construction of a road in accordance with the partition of co-owned property and the agreement on the construction of a road. However, the lower court indicated the indication of the claim in this part as “the Intervenor’s claim for confirmation that there is a right to seek consent to the construction of a road.” This appears to be a simple clerical error, and even if it is erroneous in the Intervenor’s claim, not a simple clerical error, it is identical to the conclusion that the Intervenor’s claim in this part is compatible with the Plaintiffs’ claim, which affected the conclusion of the judgment

Next, the Intervenor’s claims ①, ③ even if the Intervenor’s participation in the instant forest is confirmed, the Intervenor’s participation in the instant forest does not prevent the Intervenor’s act of building roads, which is either final and conclusive, or likely to interfere with the Intervenor’s co-ownership right, and thus, it cannot be deemed as the most effective and appropriate means, and thus, it is difficult to view the Intervenor’

Therefore, since the intervenor's application for intervention is all unlawful, the court below's rejection of the intervenor's application for intervention is just, and there is no error in the misapprehension of legal principles as to the requirements for intervention as independent party and the interest in confirmation as otherwise alleged in the ground of appeal

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 Lee Sang-hoon (Presiding Justice)