[1] The case holding that a fisheries cooperative's resolution to transfer the fishery right to a fishing village fraternity which is to be established in the area adjacent to the relevant waters free of charge cannot be deemed as a gratuitous transfer offer of the fishery right solely on the ground that such resolution was known inside and outside the meeting of the provisional representatives

[2] Whether it is possible to change a judgment to the contents more favorable than the judgment of the first instance to a party who has not filed an appeal or incidental appeal at the appellate court of an independent party intervention suit (affirmative with qualification)

[1] The case holding that a fisheries cooperative's resolution to transfer the fishery right to a fishing village fraternity which is to be established in the area adjacent to the relevant waters free of charge cannot be deemed as a gratuitous transfer offer of the fishery right on the sole basis of the fact that such a resolution was known inside and outside the scope of the resolution

[2] An independent party intervention lawsuit pursuant to Article 79 of the Civil Procedure Act is a form of litigation in which the dispute between the plaintiff, the defendant, and the intervenor concerning the same legal relationship is resolved in a lump sum without contradiction. In a case where an independent party intervention is deemed lawful and a judgment on the merits of a lawsuit between the plaintiff, the defendant, and the intervenor is rendered on the merits of the lawsuit between the above three parties, a final judgment shall be rendered in the name of the above three parties. In a case where one party appeals against the judgment on the merits, the whole final judgment of the first instance shall be interrupted and the whole case shall take effect. In such a case, the subject of the appellate court's judgment shall be limited to the scope of objection expressed in the purport of the appeal between the parties who actually filed an appeal, but the scope of the judgment shall be determined after considering the need for the unity of the conclusion between the above three parties. Accordingly, it shall not be excluded from the judgment of the first instance that is modified to the extent that it is necessary to determine the unity of the conclusion between the above parties.

[1] Article 527 of the Civil Code / [2] Articles 79 and 415 of the Civil Procedure Act

○○○ Fishing Village (Law Firm Masan, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Seosan Fisheries Cooperatives

○○ Fishing Village (Attorney Clinical Guil-won, Counsel for defendant-appellant)

Daejeon High Court Decision 2005Na6172, 6189 Decided November 17, 2006

All appeals are dismissed. The costs of appeal are assessed against each appellant.

We examine the grounds of appeal.

1. As to the Plaintiff’s ground of appeal and the ground of appeal No. 1 by an independent party intervenor (hereinafter “participating”).

An offer, which is a legal requirement for the formation of a contract, must be a specific and conclusive declaration of intent that the contract is concluded immediately if the offer accepts the offer. Therefore, it is necessary to include matters to the extent that the content of the contract can be determined (see Supreme Court Decisions 2001Da53059, Apr. 11, 2003; 2003Da41463, Dec. 8, 2005, etc.).

In light of the above legal principles and records, the court below, after compiling the adopted evidence and finding facts as stated in its decision, held a temporary board of representatives on November 27, 2002, and decided to transfer 22 fishery rights to each fishing village fraternity established in the area adjacent to each fishery right, including the fishery rights (license number: 65 of Taean Village No. 65 of Taean Village No. hereinafter "the fishery right of this case") as stated in the attached Table 2 of the judgment of the court below, without compensation, to the fishing village fraternity established in the area adjacent to each fishery right, and merely because the contents of the resolution are known inside and outside, it cannot be deemed that the defendant made an offer to transfer without compensation (donation) the fishery right of this case by the defendant, and therefore, it is just to affirm the judgment that the plaintiff, the defendant, or the defendant cannot be deemed that the donation contract concerning the fishery right of this case was concluded between the plaintiff and the defendant or the defendant, and there is no error in the misapprehension of legal principles as to the misconception of facts or subscription due to the rules of evidence.

2. On the second ground for appeal by the Intervenor

A lawsuit pursuant to Article 79 of the Civil Procedure Act is a form of lawsuit in which the plaintiff, defendant, and intervenor resolve without contradiction each other's conflict with each other in relation to the same legal relationship, and where an independent party intervention is deemed lawful and a judgment on the merits of a lawsuit between the plaintiff, defendant, and intervenor is rendered on the merits of the lawsuit between the above three parties, a final judgment shall be rendered in the name of the above three parties, and the decision shall be made jointly with the above three parties. In a case where one party appeals against the judgment on the merits, the final judgment of the first instance shall be prevented, and the whole of the case shall take effect. In such a case, the subject of the judgment on the appellate court shall be limited to the scope of the objection expressed in the purport of the appeal by the actual appellant, but the scope of the judgment shall be determined in consideration of the need for the unity of the conclusion between the above three parties. Accordingly, the conclusion in the appellate court is within the scope of the conclusion determined through a deliberation and determination, and where necessary for the unity of the conclusion between the above three parties, the judgment shall not be excluded.

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found facts as stated in its reasoning, determined that the gift contract on the fishery right of this case cannot be deemed to have been concluded between the plaintiff and the defendant, or between the plaintiff and the defendant. Accordingly, among the plaintiff's appeal and the supplementary appeal of the intervenor, the plaintiff's appeal against the intervenor seeking the cancellation of "the part in favor of the court of first instance against the defendant" and the plaintiff's incidental appeal against the plaintiff against the plaintiff, "the part in favor of the plaintiff in the court of first instance against the defendant" was accepted, and the part in the judgment against the plaintiff and the intervenor against the defendant in the judgment of first instance against the plaintiff and the intervenor shall be revoked, and the plaintiff's claim against the defendant shall be dismissed, and the court of first instance against the defendant shall be dismissed. Accordingly, the court below's appeal against the plaintiff against the defendant and the intervenor seeking the cancellation of "the part in favor against the defendant in the court of first instance against the plaintiff in the judgment against the defendant" which was partially cited in the judgment of first instance and the appeal against the defendant's appeal against the defendant.

In light of the above legal principles and records, the above measures of the court below are justified in order to deliberate and decide on the respective claims of the plaintiff and the intervenor as well as the grounds for appeal, and accordingly resolve the dispute between the plaintiff, the defendant, and the intervenor as to the fishery right of this case in a lump sum without contradiction in a single litigation procedure. As such, due to the necessity of the unity of the conclusion between the above three parties, the decision of the court of first instance is not modified more favorable than the judgment of the court of first instance, and there is no error in the misapprehension of legal principles as to the principle of prohibition of disadvantageous alteration, as otherwise alleged in the grounds for appeal by the intervenor.

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

Justices Kim Yong-dam (Presiding Justice)