[1] Whether an intervenor’s intervention in an administrative litigation is a co-litigation assistant under Article 78 of the Civil Procedure Act (affirmative); and, in case where an intervenor files an appeal, whether the intervenor may withdraw an appeal or waive an appeal (negative)

[2] Where approval is required for "use for other purposes" by the Korea Rural Community Corporation pursuant to Article 23 (1) of the former Rearrangement of Agricultural and Fishing Villages Act / Whether the "registration of agricultural infrastructure" under Article 17 of the same Act itself is effective (negative)

[1] In an administrative litigation case, even where the intervenor's participation does not fall under a third party's participation as provided by Article 16 of the Administrative Litigation Act, such participation may be deemed as a co-litigation intervention as provided by Article 78 of the Civil Procedure Act, in light of the nature of the administrative litigation, such as that the effect of the judgment extends to the intervenor, such participation may be deemed as an intervention in the co-litigation as provided by Article 78 of the Civil Procedure Act. In other words, Article 67 (1) of the Civil Procedure Act concerning indispensable co-litigation applies mutatis mutandis to a co-litigation intervention as provided by Article 78 of the Civil Procedure Act, i.e., "in the case of co-litigation the purpose of which is to be jointly decided against all co-litigants, the litigation act of the intervenor shall be effective only for all of the co-litigants, and it shall not be disadvantageous to all of the co-litigants. Thus, in the

On the other hand, when a party raises an objection against a motion for intervention under the Civil Procedure Act, the court of the lawsuit shall decide whether to allow intervention, but where the party gives any objection without raising an objection, or makes any statement during the preparatory date for pleading, the right to raise an objection shall be lost (Articles 73(1) and 74 of the Civil Procedure Act), and the court of the lawsuit may continue to conduct litigation without a decision on permission for intervention by the court of the lawsuit.

[2] In light of the language, structure, and contents of Article 61(1)4 of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013); Article 2 subparag. 6, Article 16(1) and (2), Article 17, Article 18(1) and (2), Article 23(1) of the former Rearrangement of Agricultural and Fishing Villages Act (amended by Act No. 1480, Dec. 27, 2016; hereinafter “Agricultural and Fishing Villages Improvement Act”); Article 31(2) of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act (amended by Presidential Decree No. 28028, May 8, 2017); Article 16(2) of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act is construed to be limited to cases where an implementer of the same project acquires the authority of the Korea Rural Community Corporation for conservation or management of farmland for agricultural production infrastructure; Article 31(2) of the Rearrangement of the Rearrangement of Agricultural and Fishing Villages Act.

Furthermore, “registration of agricultural infrastructure” under Article 17 of the Rearrangement of Agricultural and Fishing Villages Act is a factual basis for the competent administrative agency to supervise the management affairs of the agricultural infrastructure manager, and is only for the convenience of administrative affairs execution and the materials for certification of facts. Therefore, the registration itself cannot be deemed to have the effect of granting the management authority of agricultural infrastructure.

[1] Articles 8(2) and 16 of the Administrative Litigation Act, Articles 67(1), 73(1), 74, and 78 of the Civil Procedure Act / [2] Article 61(1)4 of the former National Land Planning and Utilization Act (Amended by Act No. 11922, Jul. 16, 2013); Articles 2 subparag. 6, 16(1) and (2), 17, 18(1) and (2), and 23(1) of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act (Amended by Act No. 1480, Dec. 27, 2016); Article 31(2)4 of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act (Amended by Act No. 1480, May 8, 2017)

[1] Supreme Court Decision 70Nu35 Decided July 28, 1970 (No. 18-2, 66) Supreme Court Decision 201Du13729 Decided March 28, 2013 (Gong2013Sang, 765)

Ministry of Environment (Law Firm Barun Law, Attorneys Jeong Jong-ju et al., Counsel for the defendant-appellant)

ancient Gun;

Korea Rural Community Corporation (Law Firm Seomin et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2014Nu6394 decided December 30, 2014

The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

1. First, we examine whether the instant appeal is legitimate.

A. In an administrative litigation case, even where the intervenor's participation does not fall under a third party's participation as provided by Article 16 of the Administrative Litigation Act, such participation may be deemed as a co-litigation participation as provided by Article 78 of the Civil Procedure Act, in view of the nature of the administrative litigation, such as that the effect of the judgment extends to the intervenor, in light of the nature of the administrative litigation, such participation may be deemed as an intervention in the co-litigation as provided by Article 78 of the Civil Procedure Act. In other words, Article 67 (1) of the Civil Procedure Act concerning indispensable co-litigation applies mutatis mutandis to a co-litigation intervention as provided by Article 78 of the Civil Procedure Act, i.e., "in the case of a co-litigation the purpose of which is to be jointly determined against all co-litigants, any one of the co-litigants shall be effective only for the benefit of all the co-litigants, and it shall not be effective against all the co-litigants. Thus, in the event of an intervenor's appeal, withdrawal of an appeal or waiver of an appeal (see, etc.).

On the other hand, when a party raises an objection against a motion for intervention under the Civil Procedure Act, the court of the lawsuit shall decide whether to allow intervention, but where the party gives any objection without raising an objection, or makes any statement during the preparatory date for pleading, the right to raise an objection shall be lost (Articles 73(1) and 74 of the Civil Procedure Act), and the court of the lawsuit may continue to conduct litigation without a decision on permission for intervention by the court of the lawsuit.

B. According to the records, ① the Intervenor’s Intervenor (hereinafter “Supplementary Intervenor”) filed an application for intervention on June 18, 2014 during the lawsuit of this case, and ② the court of the first instance on the same day sent the Plaintiff a written request to present opinions on the Intervenor’s application for intervention and received it on the following day, the Plaintiff’s assertion was made on June 26, 2014 without filing an objection against the Intervenor’s application for intervention; ③ The court of first instance allowed the Intervenor to conduct the litigation of this case as the Intervenor’s Intervenor without explicitly denying the motion for intervention; and ④ the Intervenor filed an appeal on January 19, 2015, which is the period for filing an appeal. However, the Defendant submitted the written waiver of the appeal on January 21, 2015.

C. Examining the above facts in light of the legal principles as seen earlier, since the judgment of this case also becomes effective to the intervenors, the intervenor is deemed to be in the position of co-litigation assistant intervenor, and as long as the intervenor has lawfully filed a final appeal within the period of final appeal, even if the defendant, who is the party to the lawsuit, submitted the written waiver of final appeal, such waiver of final appeal is invalid against the intervenor's interest. Accordingly, the final appeal

2. Next, we examine the grounds of appeal.

A. Whether the instant land was an accessory to a universal tide embankment since the completion of the universal tide embankment around 1937

For the reasons indicated in its holding, the lower court determined that the instant land was “miscellaneous land” at the time of completion of a universal tide embankment around 1937, but around 1986, as the water level of inland waters inside a tide embankment increased due to the installation of internal embankments around 1986, and that the instant land was a tide and maintenance of a universal tide embankment (an inland water collected within a tide embankment and tide embankment).

The ground of appeal disputing the above fact-finding among the judgment of the court below is merely an error in the selection of evidence and the judgment on the value of evidence belonging to the free trial of the fact-finding court, and thus, it cannot be accepted.

B. Whether the land of this case is "farmland preservation or landscape maintenance used for agricultural production" under the current status, and is subject to approval for "use for other than the purpose" under Article 23 of the Rearrangement of Agricultural and Fishing Villages Act

(1) Article 61(1) of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “National Land Planning Act”) provides that “When granting permission for development activities, matters about which the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu has consulted with the head of the relevant administrative agency in advance regarding the following authorization, permission, approval, license, consultation, cancellation, report, examination, etc. for the development activities shall be deemed to have been granted,” and subparagraph 4 of the same provision provides that “approval for the use of agricultural infrastructure for any purpose other than the purpose of agricultural production under Article

According to Article 23(1) of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act (amended by Act No. 14480, Dec. 27, 2016; hereinafter “the Rearrangement of Agricultural and Fishing Villages Act”) cited by the said provisions, and Article 31(2) of the former Enforcement Decree of the Rearrangement of Agricultural and Fishing Villages Act (amended by Presidential Decree No. 28028, May 8, 2017), a person who intends to use any agricultural infrastructure or water managed by the Korea Rural Community Corporation for purposes other than its original purpose shall obtain approval from the Korea Rural Community Corporation.

Here, “agricultural infrastructure” means “facilities for the use of underground water, such as reservoirs, pumping stations, and wells, such as drainage stations, irrigation reservoirs, irrigation channels, drainage channels, drainage channels, ditches, roads (including farm roads, such as concentration (concentration) under Article 4 of the Act on the Maintenance and Improvement of Road Systems in Agricultural and Fishing Villages; hereinafter the same shall apply), tide embankments, embankments, and ancillary facilities, and agricultural facilities, such as production, processing, storage and distribution facilities for agricultural and fishery products,” which are installed through agricultural production improvement projects or used for the preservation of farmland or for agricultural production (including wells), “agricultural infrastructure” (Article 2 subparag. 6 of the Rearrangement of Agricultural and Fishing Villages Act).

Furthermore, Chapter 3 provides for the manager, registration, management method, approval for use, etc. of agricultural infrastructure under the title of “management of agricultural infrastructure” in Chapter 2, Articles 16 through 24. In other words, the operator of an agricultural infrastructure improvement project shall manage the agricultural infrastructure installed as the project upon completion of a project for the development and expansion of agricultural infrastructure, but the “agricultural infrastructure established as a result of a project for the development and expansion of agricultural infrastructure implemented by the State” and the “agricultural infrastructure, among those managed by local governments or landowners, requested by the Minister of Agriculture, Food and Rural Affairs to be acquired and managed by the Korea Rural Community Corporation” may be acquired and managed by the Korea Rural Community Corporation pursuant to the decision of the Minister of Agriculture, Food and Rural Affairs (Article 16(1), 16(2)1 and 2(1)). Accordingly, a manager of agricultural infrastructure (hereinafter “agricultural infrastructure manager”) shall register the agricultural infrastructure under his/her control with the competent administrative agency (Article 17), the establishment and maintenance of a safety management plan, measures for the repair and repair of facilities, safety inspection and precise inspection (Article 18(2).

(2) In light of the language, structure, and contents of these relevant provisions, “agricultural infrastructure” under the Rearrangement of Agricultural and Fishing Villages Act is a concept that is installed as a result of an agricultural infrastructure improvement project and created by other means as well as various facilities used for the preservation of farmland or agricultural production. However, the provisions under Article 17 of the Rearrangement of Agricultural and Fishing Villages Act concerning the management of agricultural infrastructure apply only to the case of an agricultural infrastructure manager who has acquired management authority pursuant to Article 16 of the Rearrangement of Agricultural and Fishing Villages Act. Therefore, it is reasonable to interpret that the provisions under Article 23(1) of the Rearrangement of Agricultural and Fishing Villages Act apply only to the case where the Korea Rural Community Corporation shall obtain approval for “non-purpose use” of agricultural infrastructure from the Korea Rural Community Corporation pursuant to Article 23(1) of the Rearrangement of Agricultural and Fishing Villages Act.

Furthermore, “registration of agricultural infrastructure” under Article 17 of the Rearrangement of Agricultural and Fishing Villages Act is a factual basis for the competent administrative agency to supervise the management affairs of the agricultural infrastructure manager, and is only for the convenience of administrative affairs execution and the materials for certification of facts. Therefore, the registration itself cannot be deemed to have the effect of granting the management authority of agricultural infrastructure.

(3) Comprehensively taking account of the adopted evidence, the lower court determined that, even though the instant land, which was previously cut down due to the increase in the water level of inland waters inside the tide embankment, was the land that was previously cut down, the Intervenor did not compensate the owner of the instant land, and did not register the instant land as agricultural infrastructure, upon the Intervenor’s request for permission for development activities on December 26, 2012 to the Defendant on the part of the time when the Intervenor requested for consultation on the approval for use of agricultural infrastructure for the purpose other than the purpose of agricultural infrastructure, the Intervenor could have known that around January 2013, the Intervenor had registered the instant land with the Do governor as the maintenance of the tide tide embankment around January 2013. Moreover, there was no assertion or proof as to whether the Intervenor acquired the instant land management authority in the manner prescribed in Article 16 of the Rearrangement of Agricultural and Fishing Villages Act.

(4) Examining the contents and legal principles of the aforementioned Acts and subordinate statutes, since the land in this case functions as an infrastructure for the rearrangement of agricultural and fishing villages, which is an accessory facility to a sloping tide embankment, there is room to regard it as being an infrastructure for the rearrangement of agricultural and fishing villages, the part that the lower court deemed that the land in this case does not constitute an infrastructure for the rearrangement of agricultural and fishing villages is inappropriate. However, if the Intervenor did not acquire the right to manage the land in the manner prescribed in Article 16 of the Rearrangement of Agricultural and Fishing Villages Act, the land in this case is not subject to the Intervenor’s approval for use for the purpose other than the purpose of agricultural and fishing villages pursuant to Article 23(1) of the Rearrangement of Agricultural and Fishing Villages Act, and therefore, it does not require prior consultation with the head of the administrative agency concerned pursuant to Article 61(1)4 of the National Land Planning and Fishing Villages Act when granting permission for development

(5) Ultimately, the lower court’s conclusion that the instant disposition was unlawful on the premise that the Intervenor did not have the right to manage the instant land is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on agricultural infrastructure

However, since the judgment of the first instance court that revokes the disposition of this case becomes final and conclusive by this judgment, the defendant shall take a disposition again against the plaintiff's application for permission of this case in accordance with the purport of the revocation judgment (Article 30 (2) of the Administrative Litigation Act). In this case, a proper examination should be conducted as to whether the plaintiff's project plan is appropriate and other requirements for permission of development are met, and on the other hand, if it is essential to maintain and manage the land of this case as the intervenor's assertion is essential to maintain the function of a universal tide embankment, the intervenor should expropriate the land of this case and legally acquire the management authority of agricultural infrastructure in the Rearrangement of Agricultural and Fishing Villages Act

C. Abuse of rights and acceptance of rights

This part of the grounds of appeal is apparent in the record that the intervenor first raised in the final appeal, and therefore, it cannot be a legitimate ground of appeal against the judgment below.

Furthermore, even if examined, whether previous owners renounced their right to use and profit from the land of this case, or whether the land of this case was owned by the State due to its fall under the original disposition of this case, and thus, it cannot be deemed a legitimate ground for the disposition of this case in the final appeal on the ground that it was not the ground for the disposition of this case, which was presented by the original defendant. Moreover, an acceptance refers to a case where a certain land meets the requirements for national rivers or public waters as prescribed by the Act, and it refers to a case where the land of this case, located in a tide embankment, is owned by the State pursuant to the provisions of the Act (see Supreme Court Decision 9Da11687, Dec. 8, 200). It cannot be deemed that the land of this case, located in a tide embankment, was cut down in water

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the intervenor. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)