[1] In a case where a construction of facilities is performed based on the right to install facilities, such as waterworks, etc. under Article 218(1) of the Civil Act, whether the consent or consent of the landowner passing through the waterworks, etc. is required (negative); and whether the aforementioned consent or consent is a juristic act or quasi-legal act affecting the establishment or validity of the right to use facilities, such as

[2] The purport of the Ordinance on the Water Supply of Water in Seongbuk-gu, Seoul and the purport of allowing interested parties to submit a written consent if it is deemed necessary to apply for water supply works

[3] In a case where Gap applied for the execution of water supply works for a building newly built on his own land for the implementation of the water supply works, and the local government demanded Eul to submit a written consent for the use of the land owned by Eul and rejected the application, and Gap filed a lawsuit against Eul on the ground of the right to the water supply under Article 218 of the Civil Code, such as the water supply system under Article 218 of the Civil Code, the case holding that the lawsuit is unlawful on the ground that the above lawsuit cannot be deemed to constitute "the case where Gap claims a judgment in lieu of the debtor's declaration of intent at the time of a juristic act" under Article 389 (2) of the Civil Code, and there is no benefit in the protection of rights

[1] The main text of Article 218(1) of the Civil Act provides, “Where a landowner is unable to install necessary waterworks, small numbers of water pipes, gas pipes, electric wires, etc. or requires excessive expenses without passing through another person’s land, he/she may construct them by passing through another person’s land.” The right to install such waterworks, etc. is naturally recognized if it satisfies the legal requirements, and it does not require the landowner’s consent or consent to the construction of facilities, such as waterworks, etc. based on the right to use the waterworks, etc., which has an impact on the establishment or validity of the right to use the facilities, such as waterworks, etc. Therefore, the landowner’s consent or consent cannot be deemed as a juristic act or quasi-legal act that has an effect on the establishment

[2] The purport of the Ordinance on Water Supply of the Sungnam City’s Ordinance that allows interested parties to submit a written consent if it is deemed necessary for the application for water supply works. The purport of the Ordinance is that, in order to prevent disputes that may arise when executing water supply works on another’s land owned by the applicant, which is not the applicant for water supply works, and to verify whether the applicant has a right to use the land for the purpose of facilitating the implementation of water supply works on the land owned by another person based on the applicant’s right to use the land, the submission of documents indicating the landowner’s consent or consent to water supply works may be required as one of the evidentiary materials. Even if the applicant for water supply works proves that the right to use the land has been granted by other data, the submission of the written consent

[3] The case holding that in a case where Gap filed a lawsuit against Eul on the ground that "the use of land necessary for the installation of facilities, such as the water supply system, from among the land owned by Eul" based on the right to use the water supply system under Article 218 of the Civil Code, and Gap filed a lawsuit seeking the statement that "the use of land necessary for the installation of facilities, such as the water supply system, from among the land owned by Eul" is nothing more than seeking evidentiary materials necessary for the construction of facilities, and it cannot be deemed as "the case where the debtor's declaration of intent is requested at the time of a juristic act for the purpose of the construction of facilities" under Article 389 (2) of the Civil Code, and it is inappropriate to recognize the benefit of protection of rights, and in this case, Gap filed a lawsuit seeking confirmation of the right to use facilities, such as the water supply system, from among the land owned by Eul, and submitted it to Gap for the execution of the construction to the local government.

[1] Article 218 of the Civil Act / [2] Article 6 (4) of the Ordinance on Water Supply of Water in Seongbuk-si / [3] Article 248 of the Civil Procedure Act / [the filing of a lawsuit], Articles 218 and 389 (2) of the Civil Act

Plaintiff (Law Firm, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Squa, Attorneys Song Won-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2025707 decided October 8, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

Judgment ex officio is made.

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

A. On July 30, 2014, the Plaintiff submitted an application to implement water supply works for a building newly built on the ground (hereinafter “instant water supply works”) as the owner of the 317 square meters, etc. prior to the Subdivision-gu, Sungnam-si ( Address 1 omitted), and on August 5, 2014, Sungnam-si submitted an application to implement the instant water supply works. On August 5, 2014, the Plaintiff sent a reply that “In order to implement the instant water supply works, the Plaintiff must pass through the road 41 square meters (hereinafter “instant road”) of the Subdivision-gu, Sungnam-si, the Defendant-si ( Address 2 omitted), and if installing a water pipe, etc. on another’s land, the Plaintiff must attach a landowner’s written consent to the use of the land in accordance with Article 6(4) of the Ordinance on Water Supply at Seongbuk-si and Article 2(1) of the Enforcement Rule of the Ordinance on Water Supply at Seongbuk-si.”

B. Article 6(4) of the Seongbuk-gu Ordinance on Water Supply provides that "the Mayor may, if deemed necessary for the application for water supply, have interested persons submit a written consent of interested parties." Article 2(1) of the Enforcement Rule of the Ordinance on Water Supply of the Seongbuk-gu Water Supply shall submit an application for water supply works in attached Form 1 to the Sungnam City Mayor: Provided, That a person who intends to apply for water supply works in accordance with Article 6(1) of the Ordinance on Water Supply of the Water Supply of the Seongbuk-gu Water Supply shall submit an application for water supply works in attached Form 1 to the Sungnam City Mayor: Provided, That if he/she intends to build a third party's land or building, he/she shall attach a written consent of the owner of the land or building." The written consent to the land use of the road for which the Sungnam City Mayor requested to submit through the above reply is written in the form of "the road in this case is the land owned by himself/herself, and consent to the use

C. The Plaintiff failed to submit the Defendant’s written consent to land use at Sungnam-si, and on August 12, 2014, Sungnam-si returned the Plaintiff’s application for water supply works of this case.

D. Accordingly, the Plaintiff filed the instant lawsuit against the Defendant on the basis of the right to use the instant road, including the water supply under Article 218 of the Civil Act, stating that “the Defendant is obligated to express his/her intent to consent to use the instant part of the instant road among the instant roads for the construction of the water, sewage and sewage, communications, gas pipes, and electric cable facilities.” Under the premise that the instant lawsuit is legitimate, the lower court, on the premise that the instant lawsuit is lawful, has the right to implement the instant part of the instant road pursuant to Article 218(1) of the Civil Act with respect to the construction of the instant facilities. In view of the circumstances requiring the Plaintiff to submit to the Plaintiff a written consent to use the instant road on the premise of the execution of the instant water supply works, the Sungnam-si has the duty to guarantee the Plaintiff’s exercise of the right to use the instant road, and accepted the Plaintiff’s claim.

2. However, the lower court’s determination that the instant lawsuit is lawful is difficult to accept for the following reasons.

The main text of Article 218(1) of the Civil Act provides, “If the owner of land fails to pass through another person’s land, he/she may pass through another person’s land and install the land if he/she is unable to install the necessary water supply, small water supply, gas supply, electric wires, etc. or it requires excessive expenses.” Such right to install the land, such as water supply, etc. is naturally recognized if he/she satisfies the legal requirements, and it does not require the landowner’s consent or consent to the construction of the facilities, such as water supply, etc., which has an impact on the establishment or validity of the right to use the facilities, such as water supply, etc., based on Article 218 of the Civil Act. Therefore, the landowner’s consent or consent

Meanwhile, it is deemed that the consent form of interested parties may be submitted if it is deemed necessary at the time of applying for water supply works in the Seongbuk-gu Ordinance on Water Supply and Waterworks. The purport of supporting materials is that, in order to prevent disputes that may arise when executing water supply works on another’s land owned by the applicant, which is not the applicant for water supply works, and to verify whether the applicant has a right to use the relevant land for the purpose of smoothly executing water supply works on the land owned by another person based on the applicant’s right to use the relevant land, the applicant may be required to submit documents indicating the landowner’s consent to water supply works or his/her consent. Even if the applicant proves that the right to use the relevant land has been granted by other data, it is not necessary to submit a written consent to land use without exception.

Therefore, the instant lawsuit seeking that “to consent to the use of land necessary for the construction of waterworks, etc.” against the owner of the relevant land by asserting that he/she has the right to install waterworks, etc. based on Article 218 of the Civil Act is nothing more than seeking evidentiary materials necessary for the construction of the relevant facilities as a lawsuit, and it cannot be deemed that “where a debt is for the purpose of a juristic act and for the purpose of a juristic act, the debtor’s declaration of intent is substituted for the debtor’s declaration of intent” under Article 389(2

The plaintiff does not seek the above statement as a lawsuit even where the defendant refuses to make a written consent to land use, but instead, filed a lawsuit seeking confirmation that the part of the road of this case is entitled to facility rights, such as water supply under Article 218 of the Civil Act, etc. among the roads of this case, and received a favorable judgment. After submitting the documents proving the plaintiff's right to use the part of this case and filing an application for the execution of the water supply construction of this case at Sungnam

Nevertheless, the lower court did not err by misapprehending the legal doctrine on the litigation requirements in a lawsuit seeking a judgment ordering a doctor’s statement, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)