[1] The meaning of and criteria for determining the possession of an article

[2] In a case where the transmission line installed by the State on the ground of the land owned by the Incorporated Foundation Gap, and the Korea Water Resources Corporation maintains and manages the facilities by receiving investment from the State in the right to manage the water supply facilities in metropolitan areas including the transmission line, and Gap Corporation et al. primarily sought restitution of unjust enrichment due to possession of the airspace above the land, the case holding that the court below erred in the misapprehension of legal principles on the ground that the construction of the airspace above the land passed through the transmission line does not merely possess possession as the assistant of the State, even though it does not possess possession directly

[3] The legal nature of the obligation to return unjust enrichment, in a case where a direct possessor or an indirect possessor exists with respect to a certain thing, (=non-joint and several obligation)

[4] Whether a lawsuit for performance filed by an obligor jointly and severally liable as a co-defendant is a preliminary or selective co-litigants within the original meaning under Article 70(1) of the Civil Procedure Act (negative)

[5] In a case where the power transmission line established by the State on the land owned by the Foundation A, and the Korea Water Resources Corporation maintains and manages the facilities by receiving investment from the State in the right to manage the wide-area waterworks in the Seoul Metropolitan Area, including the power transmission line, and Gap corporation et al. around the Republic of Korea Water Resources Corporation, the first instance court dismissed the claim against the State against the Corporation and accepted the claim against the State, and Gap et al. filed an appeal against the Corporation and the State did not appeal against the Corporation, the case affirming the judgment of the court below that the claim against the Corporation is the only claim against the Corporation and the judgment of the court of first instance against the State was reversed, and the judgment of the court of first instance against the State became final and conclusive after the expiration of the appeal period, and the judgment of the court of first instance became final and conclusive after

[1] The possession of an object refers to the objective state in which it appears to be a factual control of a person under the social concept, and in order to have a factual control, it is not necessarily required to control the object physically and practically, but should be determined in conformity with the social concept by taking into account the time and spatial relationship with the object, the relationship with the object, the possibility of another person’s control, etc.

[2] The case holding that the court below erred in the misapprehension of legal principles on the ground that, in the case where the power transmission line established by the State on the land owned by the Foundation Gap et al. has passed, and the Korea Water Resources Corporation maintains and manages the facilities by receiving investment from the State in the right to manage the water supply facilities in metropolitan areas including the power transmission line, and Gap et al. sought restitution of unjust enrichment from the occupation of the State over the land in favor of the State, the Corporation is in the position of the holder of the right to manage the water supply facilities in metropolitan areas, and as long as the nature of the right is a real right, the Corporation is in the position of the State's holder of the right to manage the water supply facilities in metropolitan areas, and the Corporation is not in the position of occupying and supporting the above power transmission line as it directly controls and manages the above power transmission line and provides it as suitable for the Corporation to use it, since the State, the owner of the facility, is not in the position of occupying and using it directly.

[3] In a case where a direct possessor and an indirect possessor exist with respect to a certain object, the obligation to return unjust enrichment arising from the possession and use thereof is one of the obligations having the same economic objective, and the overlapping part is one of the obligations, and if one of the obligations is extinguished due to repayment, etc., the other’s obligation is also extinguished,

[4] Where an obligor who is related to quasi-joint and several liability as a co-defendant files a lawsuit for performance, each claim against the co-defendant is not legally incompatible, and such lawsuit cannot be deemed as a preliminary or selective co-litigation within the original meaning stipulated in Article 70(1) of the Civil Procedure Act. Therefore, Article 67 of the Civil Procedure Act concerning indispensable co-litigation does not apply mutatis mutandis, and thus, the effect of blocking final and conclusive by an appeal has only caused to the appellant and the other co-litigants, and it does not affect the relationship with the other co-litigants.

[5] In a case where the power transmission line established by the State on the land owned by the Foundation Gap, etc. has passed, and the Korea Water Resources Corporation maintains and manages the facilities by receiving investment from the State in the right to manage the water supply facilities in metropolitan areas including the above transmission line, and Gap corporation et al. around the Republic of Korea Water Resources Corporation, the first instance court dismissed the claim against the Corporation and accepted the claim against the State, and the corporation Gap et al. filed an appeal against the Corporation and the State did not appeal against the Corporation, the case reversed the judgment of the court below as to this part of the lawsuit as to this part, since the defendants did not have a relation of preliminary co-litigation within the true meaning applied mutatis mutandis under Article 67 of the Civil Procedure Act pursuant to Article 70(1) of the Civil Procedure Act, and the validity of the closure of the appeal due to the appeal is also decided separately by the parties concerned, so long as Gap corporation et al. filed an appeal only to the part of the judgment of the court of first instance as to the Corporation's construction, and the judgment of the first instance against the State becomes final and conclusive.

[1] Article 192(1) of the Civil Act / [2] Article 192(1) of the Civil Act; Articles 4(1)3 and 5 of the Act on the Management of Public Institutions; Articles 4(2) and (4) of the Korea Water Resources Corporation Act; Articles 9(1)2, 20(1) and 24(1) of the Korea Water Resources Corporation Act; Article 3 subparag. 26 of the Water Supply and Waterworks Installation Act / [3] Articles 192, 194, 413, and 741 of the Civil Act / [4] Articles 67 and 70(1) of the Civil Procedure Act / [5] Articles 192, 194, 413, and 741 of the Civil Act; Articles 67 and 70(1) of the Civil Procedure Act

[1] Supreme Court Decision 95Da31317 decided Dec. 23, 1996 (Gong1997Sang, 479) / [4] Supreme Court Decision 2006Da47677 decided Mar. 26, 2009 (Gong2009Sang, 528)

Same-sex Association et al., Counsel for the defendant-appellant (Law Firm Geumsung, Counsel for the plaintiff-appellant-appellant)

Korea Water Resources Corporation (Law Firm AB, Attorneys Choi Jin-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2010Na117216 Decided August 18, 201

The lower judgment is reversed. The part on Defendant Korea Water Resources Corporation is remanded to the Seoul High Court. The lawsuit against Defendant Korea was terminated on November 23, 2010, the expiration date of the appeal period against the first instance judgment.

1. The grounds of appeal are examined.

A. Possession of an object refers to the objective state in which it appears to be a factual control under the social concept, and in order to have a factual control, it is not necessarily required to control the object physically and practically, but should be judged in conformity with the social concept by taking into account the time and spatial relationship with the object, the relationship with the object, the possibility of control by others, etc. (see, e.g., Supreme Court Decision 95Da31317, Dec. 23, 1996).

B. According to the facts established by the court below and the evidence duly admitted by the court below, the same-sex association of the plaintiff foundation owns each land listed in the annexed Table 1 of the judgment of the court of first instance [Attachment 1] 3,5 through 9; the land listed in the annexed Table 1 of the judgment of the court of first instance ; the land listed in the annexed Table 1 of the judgment of the plaintiff foundation 1 to 3,5 through 9; the plaintiff 14,000 Korean Federation Maintenance Foundation of the plaintiff 14; on each of the above land, the above land has passed a transmission line of 154,000 V use voltage (hereinafter "electric transmission line of this case"); the defendant Korea Water Resources Corporation (hereinafter "the defendant Corporation") established by the defendant on July 15, 1995 with the right to manage water facilities on wide-area waterworks of this case established by the defendant on August 9, 1995; and it has completed the registration of transfer from the defendant's private sector on the part of the plaintiff 1 to 2354.5.

C. According to Articles 4(1)3 and 5 of the Act on the Management of Public Institutions, the Minister of Strategy and Finance may designate an institution with at least 50/100 of the Government’s shares as a public corporation. According to Articles 4(1) and 4(2) of the Korea Water Resources Corporation Act, the Defendant Corporation is a public corporation since the State, among the 10 trillion won, has invested at least 50/100 of its capital. In addition, pursuant to Article 4(4) of the Korea Water Resources Corporation Act, the State may invest the right to manage the waterworks under Article 3 subparag. 26 of the Korea Water Resources Corporation Act in the Defendant Corporation. According to Article 20(1) of the Korea Water Resources Corporation Act, the right to manage the waterworks invested as such shall be deemed a real right. Under Article 20(1) of the Korea Water Resources Corporation Act, the provisions concerning real estate under the Civil Act shall apply mutatis mutandis to the right to manage the waterworks, except as otherwise provided in the above Act.

Meanwhile, according to Articles 9(1)2 and 24(1) of the Korea Water Resources Corporation Act, the defendant Corporation is the main agent of the business of using, maintaining, and managing water supply facilities, and if necessary to carry out the business, it is also possible for the defendant Corporation to acquire the right to use the land over which transmission lines pass by lawful methods of expropriation or use under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

D. In full view of the above facts and legal provisions, the Defendant Corporation is in the position of the holder of the right to manage the waterworks facilities in metropolitan areas from the Defendant Republic of Korea, and so long as the nature of the right is a real right, the Defendant Corporation is in the position of directly controlling and managing the power line of this case, which is a part of the said waterworks, and the Defendant Corporation is not in the position of assisting the Defendant Corporation in occupying and using the said facilities. Accordingly, the part of the airspace over the land passing through the power line of this case (the part within the statutory distance from both sides of the power line) is merely an occupation of the Defendant Corporation as an assistant to the possession of the Defendant’s Republic of Korea.

Nevertheless, the lower court upheld the first instance judgment rejecting the Plaintiffs’ claim on the ground that it is insufficient to view that Defendant Corporation occupied the Plaintiffs’ land while managing and using the transmission line of this case. In so doing, the lower court erred by misapprehending the legal doctrine on possession, thereby adversely affecting the conclusion of the remaining judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. The decision shall be made ex officio;

A. Article 70(1) of the Civil Procedure Act provides, “No legal compatibility” as a requirement for preliminary co-litigation means, unlike a different legal evaluation of the same factual relationship, where two claims are deemed to have the legal effect of either of the two claims, and the legal effect of either of the two claims is denied, or where both claims cannot be accepted due to the denial of the legal effect of the other claims, or where either of the parties has the legal effect by a selective fact-finding that constitutes a factual basis or a cause for a claim, and thereby, becomes an objection to deny or affirming the other party’s legal effect, and where two claims affect the other claim’s reasoning for the determination of the other claim, so that the determination process of each claim is necessarily mutually combined, as well as where it cannot be compatible with one another under the Civil Procedure Act (see, e.g., Supreme Court Order 2007Ma515, Jun. 26, 2007).

However, if a party's claim is filed in the form of a preliminary co-litigation, but the claim against the co-litigants is not legally incompatible, it shall not be a preliminary co-litigation as stipulated in Article 70 (1) of the Civil Procedure Act, but a normal co-litigation, etc., depending on the nature of the claim's original nature. Thus, if only a part of the co-litigants is dissatisfied with the judgment on such co-litigation, it shall be transferred to the appellate court, and the scope of the appellate court's power shall be limited to

B. In a case where a direct possessor or an indirect possessor of a certain thing exists, the obligation to return unjust enrichment due to his possession or use is an obligation with the same economic purpose, and the obligation of one party with respect to overlapping part is extinguished due to repayment, etc. In a case where an obligor who is in the relationship of quasi-joint and several liability is jointly and severally liable and the obligation of the other party is jointly and severally liable, the other party’s obligation is extinguished. In a case where an obligor who is in the relationship of quasi-joint and several liability is jointly and severally liable as a co-defendant, each claim against the co-defendant is not legally incompatible, and thus the lawsuit cannot be deemed as a preliminary and selective co-litigation within the original meaning stipulated in Article 70(1) of the Civil Procedure Act (see Supreme Court Decision 2006Da47677, Mar. 26, 2009). Accordingly, Article 67 of the Civil Procedure Act as to indispensable co-litigation does not apply mutatis mutandis, and thus, it does not affect the relationship between appellant and the other

C. However, the structure and progress of the instant lawsuit, which can be known by the record, are as follows.

(1) On September 19, 2009, the Plaintiffs filed a lawsuit against the Defendant Corporation seeking restitution of unjust enrichment while the Defendant Corporation temporarily owned and occupied the instant transmission lines over the land and airspace of the Plaintiffs.

(2) The Defendant Corporation only managed the water-supply facilities including the instant transmission line entrusted by the State, and the owner and the possessor of the water-supply facilities responded to the State.

(3) As the Plaintiffs invested in Defendant Corporation the ownership of the instant transmission line, the possessor of the Plaintiffs’ land is the Defendant Corporation, and if the possessor is deemed to have invested in simple management rights, such as Defendant Corporation’s assertion, and the possessor is the State, the party performing the obligation to return unjust enrichment. As such, Defendant Corporation and Defendant Republic of Korea filed an application for adding Defendant Republic of Korea to Defendant Corporation as a preliminary defendant, asserting that Defendant Corporation and Defendant are in a position not compatible with the law, depending on the legal nature of the act of investment in the right to manage waterworks facilities, and that Defendant Corporation and Defendant Republic of Korea were in a position not compatible with the law. Following the first instance court’s permission, the Plaintiffs primarily claimed return of unjust enrichment

(4) The first instance court dismissed the claim against the Defendant Corporation on the ground that its possession cannot be recognized, and accepted the claim against the Defendant Republic of Korea. Accordingly, only the Plaintiffs filed an appeal against the Defendant Corporation, and the Defendant Corporation and the Defendant Republic of Korea did not appeal.

(5) The lower court deemed that the instant lawsuit was a co-litigation by a subjective and preliminary consolidation, and the part concerning the Defendant Republic of Korea was also subject to an appellate trial, and subsequently dismissed the Plaintiffs’ appeal. The Plaintiffs filed a second appeal.

D. In light of the above legal principles, even according to the plaintiffs' assertion itself, the existence of the defendants' obligations should be separately determined, and the legal connection between them is not limited to the joint liability of direct or indirect occupant and the direct or indirect occupant in the quasi-joint and several liability relationship, so this case does not constitute a case where the claims against one co-litigant and the claims against other co-litigants are legally incompatible. Therefore, the defendants do not have a relationship of preliminary co-litigation in the real meaning of Article 67 of the Civil Procedure Act applied mutatis mutandis pursuant to Article 70(1) of the Civil Procedure Act. Thus, the validity of the blocking of confirmation due to appeal should be separately determined by each party.

E. Thus, if the plaintiffs filed an appeal only against the defendant corporation among the judgment of the court of first instance, only the claim against the defendant corporation shall be subject to the judgment of the appellate court, and the judgment of the court of first instance against the defendant Republic of Korea shall be deemed to have been separated and finalized by November 23, 2010, which is the expiration date of the appeal period. Nevertheless, the judgment of the court below on the ground that the claim against the defendant Republic of Korea, which has become final and conclusive, is deemed to have been transferred to the appellate court, is erroneous in the misapprehension of legal principles as to the scope of the appellate judgment due to

3. Conclusion

Therefore, the lower judgment is reversed, and the part concerning Defendant Corporation is remanded to the lower court for further proceedings consistent with this Opinion. The part concerning Defendant Republic of Korea is remanded to the lower court for further proceedings consistent with Article 437 subparag. 1 of the Civil Procedure Act. The part concerning the lawsuit against Defendant Republic of Korea is declared to be terminated by the passage of November 23, 2010, which is the expiry date of the appeal period against the first instance judgment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)