[1] The meaning of a person living together under Article 186(1) of the Civil Procedure Act

[2] The method of interpreting a juristic act in a case where the objective meaning is not clearly revealed by the parties’ language and text

[3] In a case where Gap intended to purchase the land owned by Eul to establish an access road to his own land, but the said land was designated as an amusement park site, Gap divided a neighboring land from forest owned by Eul to use it as a road and prepared a sales contract stating that the land divided by Gap will be donated to the local government, and it is difficult for Gap and Eul to divide the adjacent land into a road and then conclude a contract to alter the right to use the land originally intended to purchase as a road; and Eul delivered a written consent for the use of the road to Eul, the case holding that the judgment below erred by misapprehending legal principles, in light of all the circumstances such as the fact that Gap and Eul did not state the establishment of an easement or other water rights, in the contracts made between Gap and Eul, and there was an agreement to establish a servitude between Gap and Eul

[1] Article 186 (1) of the Civil Procedure Act / [2] Article 105 of the Civil Act / [3] Articles 105 and 291 of the Civil Act

[1] Supreme Court Decision 80Da1662 decided Apr. 14, 1981 (Gong1981, 13897) / [2] Supreme Court Decision 2008Da9095, 90101 decided May 14, 2009 (Gong2009Sang, 837)

Plaintiff (Attorney Han-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Law, Attorneys Seo Dong-dong et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2016Na61191 Decided May 30, 2017

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

1. Determination as to whether an appellate brief was filed within the deadline for submitting the appellate brief

According to Article 186(1) of the Civil Procedure Act, when a person to receive service is not present at a place other than work place, a document may be served as a person living together with the person who is man of sense as a person living together with the person to receive service (see Supreme Court Decision 80Da1662 delivered on April 14, 1981, etc.).

According to the records, although the non-party who was the defendant's death on June 22, 2017 received a written notice of receipt of the final appeal on June 22, 2017, the defendant and the non-party did not constitute the same household with different addresses and did not have any evidence to recognize the non-party as a person living together with the defendant, the delivery of the written notice of receipt of the final appeal to

Therefore, the appellate brief filed by Defendant’s attorney on August 29, 2017 was submitted from August 17, 2017 to Defendant’s attorney before the lapse of the twenty-day period stipulated in Article 427 of the Civil Procedure Act from August 17, 2017 when the notice of receipt of the instant appellate brief was served on Defendant’s attorney.

2. Judgment on the grounds of appeal

A. Interpretation of a juristic act is clearly confirming the objective meaning that the party gave to the act of indicating it, and it does not include only the language used, but only the objective meaning that the party gives to the act of indicating it shall be reasonably interpreted according to the contents of the language and text. In a case where the objective meaning is not clearly expressed by the party’s language and text, it shall be reasonably construed in accordance with logical and empirical rules, and ordinary common sense and transaction norms so as to conform to the ideology of social justice and equity, by comprehensively taking into account the following factors: the form and content of the text; the motive and background leading up to the juristic act; the purpose and genuine intent of the party to the juristic act; and the transaction practices (see, e.g., Supreme Court Decision 2008Da9095, May 14, 2009).

B. 1) The lower court, on the grounds indicated in its reasoning, determined that the Defendant’s act of allowing the Plaintiff to use the instant land permanently as a road by concluding a contract for change of rights and issuing a written consent for use of the road ought to be seen as an agreement for the establishment of an easement, rather than a multilateral, and that the agreement between the parties was already issued a written consent for use of the road or the name of the right to use the instant water in the process of the agreement was not specifically

2) However, it is difficult to accept the above judgment of the court below in the following respect.

A) Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Plaintiff is the co-owner of forest land of 3,394 square meters in Jung-gu, Incheon. The Defendant is the owner of forest land of 992 square meters adjacent to the south of the said forest land ( Address 2 omitted) (hereinafter “instant land”).

(2) The Plaintiff intended to purchase the instant land from the Defendant to open an access road. However, as the instant land was designated as the amusement park site, the Plaintiff decided to purchase 130 square meters out of the neighboring land ( Address 3 omitted) forest land (hereinafter “Adjoining land”).

(3) On November 10, 2002, the Plaintiff and the Defendant drafted a sales contract on adjoining land. The main contents of the contract, instead of paying KRW 260 million to the Defendant, the Defendant divided the adjoining land into a forest and forest and let the Plaintiff use it as a road, and the divided land is donated to Incheon Metropolitan City.

(4) On November 10, 2002, the Defendant issued to the Plaintiff a letter of consent to the use of road on adjoining land, and the Plaintiff completed the payment of KRW 260 million around that time.

(5) Since it is difficult to construct a road by dividing a neighboring land, the Plaintiff and the Defendant concluded a contract for the alteration of rights around March 2008. The main content was that the Plaintiff used the instant land as a road instead of giving up the right to adjacent land.

(6) Around March 2008, the Defendant issued to the Plaintiff a written consent to the use of the instant land.

(7) On August 13, 2009, the Plaintiff filed a lawsuit seeking the return of KRW 260 million, alleging that the contract entered into with the Defendant was rescinded, but the judgment against the Plaintiff was rendered and confirmed on March 19, 2013.

(8) On May 21, 2013, the Plaintiff cooperated with the Defendant to build a road on the instant land, and, after the construction of a road, donated it to Incheon Metropolitan City, and sent content-certified mail requesting the issuance of a certificate of personal seal impression to be attached to the letter of consent to use of the road.

(9) Around December 2013, the Defendant issued a written consent to the use of a road to the Plaintiff, and the written consent states that the period of the use of the road is “Yong-gu Incheon Metropolitan City (term of donation after the opening of the road).”

B) Examining the above facts and the following circumstances revealed therefrom in light of the legal doctrine as seen earlier, it is not recognized that an agreement was concluded between the Plaintiff and the Defendant to establish a servitude.

(1) The contract made between the Plaintiff and the Defendant does not contain a statement that the servitude or other beneficial rights are established.

(2) The time when the Plaintiff first concluded a contract with the Defendant for the purpose of opening access roads to forest land ( Address 1 omitted) is May 1, 2002. The Plaintiff thereafter received a written consent from the Defendant on several occasions, including (1) November 10, 2002; (2) March 2008; and (3) December 2013; however, there was no demand for the establishment of a servitude for more than 10 years until the filing of the instant lawsuit.

(3) In 2009, the Plaintiff filed a lawsuit seeking the return of KRW 260 million, which was already paid against the Defendant, but lost. At that time, the Plaintiff asserted that (i) the Defendant interfered with the construction of a building on the adjoining land to enter the entry; (ii) the Defendant failed to implement the construction despite having to transfer the ownership of the land of this case; and (iii) the Defendant’s assertion that the construction of a road on the instant land is impossible; and (ii) the Defendant did not intend to cancel the contract concluded between the Plaintiff and the Defendant on the grounds of various reasons attributable to the Defendant. However, there was no question that the Defendant did not grant

(4) Even after the loss of the preceding lawsuit, the Plaintiff requested the Defendant to issue a certificate of personal seal impression to be attached to the letter of consent to use of the road, and did not request the Defendant to grant the right to easement until the time of the instant lawsuit.

(5) The Plaintiff and the Defendant agreed to contribute a road to Incheon Metropolitan City immediately after the construction of the road on the instant land. It is very exceptional to set up a servitude on the road that belongs to a local government and is expected to be provided free of charge for the passage of the general public.

C) Nevertheless, the lower court upheld the first instance judgment that accepted the Plaintiff’s claim by deeming that there was an agreement between the Plaintiff and the Defendant to establish a servitude. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of a legal act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)