[1] The case holding that the oil storage tank belongs to Gap's ownership pursuant to the proviso of Article 256 of the Civil Code, in case where Gap leased land to Eul and then installed oil storage tank underground for the oil station business

[2] Whether a special agreement can exclude an accessory from an accessory or dispose of only an accessory separately when disposing of the principal object (affirmative)

[3] Requirements for the person causing contamination under Article 10-3 (3) 2 of the Soil Environment Conservation Act

[4] In a case where Gap leased the land to Eul and operated the gas station, and the soil contaminated by the oil was discovered at the neighboring place and the soil was found to have been inspected, the case holding that Eul cannot be deemed as liable for damages under Article 10-3 of the Soil Environment Conservation Act

[1] In a case where Gap, after leasing land to Eul and then installing oil storage tanks underground for the gas station business, the case holding that, considering the location, physical structure, use, etc. of the oil storage tank, the oil storage tank belongs to Gap's ownership pursuant to the proviso of Article 256 of the Civil Code, since it is difficult to separate or recover from the land, it can be deemed that the economic value is considerably reduced if excessive or separate expenses are needed to separate it from the land, and it is difficult to view that it is the object of an independent right in a transaction, and it is difficult to say that Gap actually lost the object of an independent right in a transaction, and that it constitutes a constituent part of the land.

[2] Since Article 100(2) of the Civil Code that an accessory is accompanied by the disposal of the principal thing is a voluntary provision, a party may exclude the accessory from a special agreement at the time of disposal of the principal thing, and dispose of only the accessory separately.

[3] In comparison with the literal interpretation of the "facilities subject to the control of soil contamination" under Article 10-3 (3) 1 of the Soil Environment Conservation Act (hereinafter the "Act") or the definition of "facilities, devices, buildings, structures, and places, etc. which are likely to pollute soil" under Article 2 subparagraph 3 of the Act, it is reasonable to interpret Article 10-3 (3) 2 of the Act as the requirement that the facilities subject to the control of soil contamination should not cause soil contamination by the direct act of the person who owns, occupies, or operates the facilities subject to the control of soil contamination, but it does not require causation with the person who owns, occupies, or operates the facilities subject to the control of soil contamination. In other words, it does not require causation with the person who owns, occupies, or operates the facilities subject to the control of soil contamination.

[4] In a case where Gap leased a parcel of land to a landowner Eul and operated a gas station, and the soil contaminated by the oil was discovered at the adjoining place and the soil was found to have been found to have been caused by the bad quality of piping connected to Gap's oil storage, the case holding that Eul cannot be deemed liable for damages pursuant to Article 10-3 of the Soil Environment Conservation Act on the ground that causation between Eul and Eul's soil contamination is not acknowledged in light of all the circumstances, such as the relationship between Gap and Eul's land lease, etc.

[1] Article 256 of the Civil Act / [2] Article 100 (2) of the Civil Act / [3] Articles 1, 2 subparagraph 3, and 10-3 (1) and (3) of the Soil Environment Conservation Act / [4] Articles 1, 2 subparagraph 3, and 10-3 (1) and (3) of the Soil Environment Conservation Act

[2] Supreme Court Decision 2009Do6203 Decided September 24, 2009

Plaintiff

Defendant

Busan High Court Decision 2008Na20065 decided September 10, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first ground for appeal

A. Whether the oil storage tank of this case complies with the land of this case

In accordance with the proviso of Article 256 of the Civil Act, a combination includes not only cases where it is impossible to separate without damage, or excessive expenses are required to separate, but also cases where the economic value is extremely reduced, the cause of the combination includes cases where it is artificial (see Supreme Court Decisions 4294DaDa445, Jan. 31, 1962; 207Da36933, May 8, 2008; 207Da36940, May 8, 2008). If an article attached to a real estate is attached with legitimate title, the ownership of the article is attributed to the owner of the real estate pursuant to the proviso to Article 256 of the Civil Act: Provided, That where the article attached to the real estate is de facto unable to separate or recover from the real estate, and where the article belonging to the real estate which constitutes a whole real estate, the ownership of the article belongs to the owner of the real estate (see, e.g., Supreme Court Decisions 84Da2428, Dec. 24, 2008

According to the reasoning of the judgment below and the records, the oil storage tank of this case was established by Nonparty 1, who was engaged in oil sales business in a leased land from the Defendant, and Nonparty 1 excavated the land of this case and made a tank room in depth above 4 meters underground, and laid underground by inserting the oil storage tank of this case in such a manner. The oil storage tank of this case was used for the oil station business connected to the ground gas stations through underground oil pipelines.

In light of the above facts and the legal principles as seen earlier, the oil storage tank of this case appears to have significantly reduced economic value if excessive expenses are required to separate it from the land or separate it from the land when considering the location, physical structure, and use of the buried underground. However, it is difficult to deem that the oil storage tank of this case was consistent with the land of this case because it is virtually impossible to separate and recover from the land of this case. However, it is difficult to deem that the object of an independent right is lost in the transaction, and that it was a constituent part of the land of this case. Furthermore, according to the above recognized facts, the oil storage tank of this case should be deemed to have been laid underground on the basis of the right of lease. Accordingly, the oil storage tank of this case remains as owned by Nonparty 1, the installer, pursuant to the proviso of Article 256 of the Civil Act, and the ownership of

B. Whether the oil storage tank of this case belongs to the defendant as an accessory to the gas station building

According to the reasoning of the judgment below and the records, the non-party 1, the lessee of the land of this case, constructed a new building on the land of this case and completed the oil station business around October 1994, and thereafter run the oil station business from around that time. On March 23, 1998, the non-party 1 newly installed the oil storage tank of this case in lieu of the existing underground storage tank around March 23, 1998 and used the oil storage tank of this case for the oil station business along with the above facilities such as the abandonment of the above building and the ground, and the fact that the ownership transfer registration was completed on April 17, 1998 for the above building. Accordingly, the oil storage tank of this case is an independent object separate from the above building, or the non-party 1, the owner of the above building, installed in the adjacent underground to the above building in order to achieve the economic utility of the building itself, and thus, the oil storage tank of this case constitutes an accessory to the above common building.

However, since Article 100 (2) of the Civil Code that an accessory is accompanied by the disposal of the principal thing is a voluntary provision, the parties can exclude the accessory from a special agreement at the time of disposal of the principal thing, and only the accessory can dispose of the accessory (see Supreme Court Decision 2009Do6203, Sept. 24, 2009). According to the records, the non-party 1 sold only the oil storage and the gasing, etc. of this case to the non-party 2 on April 2, 1998, after selling it to the non-party 2, the fact that the registration of ownership transfer concerning the above building was completed, and the oil storage tank of this case can be recognized that the non-party 3, 4, and the co-defendant of the first instance court sold the above building in sequence, so the defendant cannot be deemed to have acquired the ownership of the oil storage of this case, which is an accessory.

C. Therefore, the court below is just in rejecting the plaintiff's assertion that the owner of the oil storage tank of this case was the defendant, and there is no error of law by misunderstanding the legal principles as to the compliance or accessory

2. On the second ground for appeal

In the final appeal, the correction or modification of the purport of the claim and the cause of the claim, which are premised on the assertion of facts, is not allowed (see, e.g., Supreme Court Decisions 89Nu7801, Oct. 8, 1991; 97Nu12235, Dec. 12, 1997). Without being alleged in the original judgment, the new assertion that comes into the final appeal and comes into the final appeal cannot be a legitimate ground for appeal against the original judgment (see, e.g., Supreme Court Decisions 92Da24325, Sept. 25, 1992; 2001Da9311, 9328, Sept. 24, 2002).

In light of the records, the plaintiff asserted only liability for damages as the possessor or owner of the oil storage tank of this case based on Article 758 of the Civil Act, liability for tort liability under Article 750 of the Civil Act, liability for damages as the polluter under Article 10-3 of the Soil Environment Conservation Act, and claim for damages equivalent to the cost of removing pollutants based on Article 214 of the Civil Act, until the closing of argument in the court below's trial, and it cannot be seen that the claim for damages based on Article 214 of the Civil Act is naturally included in the claim for damages based on Article 758 (b) or Article 750 of the Civil Act.

Therefore, this part of the ground of appeal cannot be accepted.

3. On the third ground for appeal

A. Article 1(1) of the Soil Environment Conservation Act (hereinafter “Act”) provides, “The purpose of this Act is to prevent danger and injury to public health and environment due to soil contamination, and to ensure that all citizens enjoy a healthy and pleasant life by properly maintaining and preserving soil, such as purifying contaminated soil for the conservation of the soil ecosystem.” Article 2(3) of the Act provides, “The term “facilities subject to the control of soil contamination” means facilities, equipment, buildings, structures, structures and places where soil is likely to be contaminated by producing, transporting, storing, treating, processing, or disposing of soil contaminants.” In addition, Article 10-3(1) of the Act provides, “When soil contamination has occurred due to a natural disaster or war, the person causing the soil contamination shall compensate for such damages and purify the contaminated soil.” However, the same shall not apply to cases where soil contamination has occurred due to a natural disaster or war,” and Article 2(3) of the Act provides, “a person who owns, discharges, or occupies soil contaminants at the time of the occurrence of soil contamination (the cause of soil contamination).”

In order to achieve the purpose of the Act, Article 10-3(1) of the Act provides strict liability for the liability to compensate for the damages caused by soil contamination and purify contaminated soil, and at the same time, it is interpreted that the person causing soil contamination is specifically overheated in Article 10-3(3) of the Act for effective compensation for damages and purification of contaminated soil. Article 10-3(3)1 of the Act provides that the person who directly caused soil contamination by the act of leaking soil contaminants into soil shall be the source of pollution, while Article 10-3(3)2 of the Act provides that the person who owns, occupies, or operates the facilities subject to the control of soil contamination, which cause soil contamination, shall be defined as the source of pollution. Then, Article 2 Subparag. 3 of the Act provides that the person who directly caused soil contamination, and Article 10-3(1) provides for the person who directly caused soil contamination, and only in comparison with the definition of “facilities, devices, buildings, and places likely to cause soil contamination,” the causal relationship between the person who directly owned or occupies facilities subject to the control of soil contamination.

B. According to the reasoning of the judgment below, the court below determined as follows: (a) the defendant leased the land of this case owned by the defendant to the co-defendant of the court of first instance on October 16, 2004; (b) the co-defendant of the court of first instance purchased the oil of this case installed under the ground of this case from the non-party 5 on October 25, 2004, and facilities such as petroleum and liquor located therein; and (c) from November 1, 2004, he operated the gas station from around November 1, 2004; (d) however, around June 12, 2005, it was found that soil contaminated in the construction site of the ○○○ Gas Corporation adjacent to the land of this case was discovered; (e) the soil contamination inspection conducted on June 21, 2005, it is difficult to view the land of this case as the joint owner of the land of this case, and (e) the situation surrounding the facilities of this case, including the soil contamination inspection, as defined in Article 3 of this case.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s rejection of the Plaintiff’s assertion on the ground as seen above is justifiable in light of the records, and it did not err by misapprehending the legal doctrine on the person causing contamination as stipulated under Article 10-3(3) of the Act.

4. Conclusion

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

Justices Min Il-young (Presiding Justice)