(영문) 울산지방법원 2017.5.11.선고 2016가합21397 판결

1. The Defendant: 2 block No. 2 block No. 1 unit within the Ulsan-gu Seoul Special Metropolitan City AA Land Partitioning Zone, Ulsan-gu, Ulsan-gu, the Plaintiff

2- Of the road sites in 122, the site for the road (including sidewalks, marked 1, 2, 3, and 4 points) and facility greenbelts (attached Form Do);

There is a right to be supplied with electricity by means of installing telegraphs, etc. at least 5 & 6 points;

confirm that the action has been taken.

2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Facts of recognition

A. The Defendant, on March 10, 1993, obtained authorization for the compartmentalization and rearrangement project and rearrangement project for D members of Ulsan-gu, Ulsan-gu, and is a land rearrangement project cooperative. The Plaintiff is a sand company with regard to the 2 block No. 1, lot No. 4, and lot No. 18, 012 square meters (hereinafter “the instant apartment site”) located in the AA land rearrangement zone.

B. On October 14, 2013, the Plaintiff obtained approval for the use of land reserved for replotting to operate E business on the apartment site from the Defendant, and obtained the approval for the use of land reserved for replotting to operate the E business on January 23, 2014 from the head of Ulsanbuk-do, the Plaintiff obtained the approval for the use of the E business plan on the apartment site from the head of Ulsan-do, and currently, the occupant lives after completion of the apartment site.

C. The Plaintiff requested to supply electricity to the Korea Electric Power Corporation (hereinafter referred to as the “Korea Electric Power Corporation”) in order to supply electricity to an apartment complex, and the Korea Electric Power Plant installed six utility poles, such as the attached drawings, on the road site and facility green belt (hereinafter referred to as the “key land”) among the 2-122 block No. 2 block and the 2-122 block in the AA land rearrangement zone owned by the Defendant.

D. On April 20, 2016, the Defendant obstructed the installation of a telegraph pole on the key land, and demanded removal while installing a telegraph pole without the Defendant’s consent before around May 2016.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 through 5 (with a number of branches, hereinafter the same shall apply), Gap evidence 7 through 9, Eul evidence 8 and 9, the purport of the whole pleadings and arguments

2. The assertion and judgment

A. The assertion

1) The Plaintiff asserts that, without passing through the pertinent land, electricity can not be supplied to an apartment without passing it, even if the Defendant’s land readjustment project completed almost, and the utility poles are installed in the instant land, it does not interfere with the Defendant’s business. The key issue is that, even if the utility poles are installed in the road site and the facility green belt, Defendant would not have any special damage, while the utility poles are not installed in the apartment site, there is an excessive cost and inconvenience in moving or dismantling the utility poles into the apartment site. Therefore, the Plaintiff has the right to be supplied with electricity by means of installing electric poles on the key land in accordance with Article 218(1) of the Civil Act, and is obliged to avoid this.

2) The defendant asserts that the utility pole can be installed without passing through the land at issue, and this does not require excessive use, and that the land readjustment project by the defendant is remarkably damaged by the installation of the utility pole.

B. Determination

1) A landowner may install necessary water supply pipes, minority pipes, gas pipes, electric wires, etc. without passing through another person’s land, or require excessive expenses. However, the method and place should be selected which does not cause the least damage to another person’s land (Article 218(1) of the Civil Act). In a specific case where the place and method where the least damage was chosen, the determination should be made based on the geographical, location, and direction of both parties’ land, neighboring geographical state, neighboring geographic situation, users’ understanding and loss, and all other circumstances (see Supreme Court Decisions 85Meu129, Oct. 22, 1985; 2003Da18661, Jul. 14, 2005).

2) Comprehensively taking into account the following facts and circumstances, the facts acknowledged earlier, Gap evidence No. 2, and the result of this court’s on-site inspection on the head of the Han-dong District District, which are acknowledged by adding up the whole purport of the pleadings to the whole purport of the pleadings, as a result of the fact-finding on the Han-dong District President of the Han-dong District District, the plaintiff cannot install necessary telegraph poles, etc., or requires excessive costs, without passing through the land at issue, and installing telegraphs, etc. by passing through the land at issue

① On March 10, 1993, Ulsan Metropolitan City Mayor added the condition that “it shall be accepted and transferred for each management authority in the future with respect to the infrastructure, such as various public facilities, etc. installed by the project executor, while authorizing the rearrangement project and rearrangement project to the Defendant.” On September 18, 2007, the Defendant obtained the authorization of a final land substitution plan for the land rearrangement zone including the land in question from the Ulsan Metropolitan City Mayor on September 18, 2007.

(2) Since the land at issue where telegraphs are installed is already created as road sites and facility greenbelts under a land substitution plan, and it is expected that the ownership will accrue to Ulsan Metropolitan City or Ulsan Metropolitan City North-gu, which is the management agency of facilities in the future. Therefore, there is no room for the defendant to exercise the property right in the future.

③ On October 14, 2013, the Defendant expected to install a telegraph pole, etc. on the pertinent land by granting the Plaintiff approval for the use of the land scheduled for replotting to operate the E business on the apartment site to a certain extent.

④ On the apartment site, the apartment house with a total of 336 households has already been completed and the occupants reside, and electricity is being supplied through a telegraph station installed on the land at issue.

(5) Two telegraph poles, which supply electricity to apartment lots, can be moved into apartment lots, but four electric facilities that supply electricity to commercial buildings are difficult to move into apartment lots in accordance with GB technology standards, such as securing a separation distance from commercial buildings and apartment lots, and electric facilities that provide electricity to neighboring areas as well as apartment lots.

6. Although there is no method to lay electric wires underground without installing a utility pole on the key land, there is the same problem that intrudes into the private land which is laid underground after the distribution point of liability after Han River (the former).

7) Article 61 of the Road Act, Article 55 of the Enforcement Decree of the Road Act, Article 38 of the Urban Park and Greenbelts Act, and Article 43 of the Enforcement Decree of the same Act provide that permission to occupy and use a road or to occupy and use a green belt for the installation of a utility pole, etc. shall be granted. Thus, a utility pole may be installed in a road site such as the land at issue or in a city green belt, and two utility poles shall be installed in a road site connected to the land at issue, such as

3) Therefore, the Plaintiff is entitled to pass through the pertinent land and receive electricity by installing telegraph poles, etc., and there is a benefit to seek confirmation as long as the Defendant is disputing.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.