(영문) 울산지방법원 2017. 12. 21. 선고 2017가합23291 제12민사부 판결

1. The plaintiffs confirm that the defendant has the right to be supplied with tap water and urban gas by installing water supply facilities and urban gas supply facilities in the site of the road (including a sidewalk, the main connected point of the attached drawing awarding water, and the connected point of urban gas supply pipes with the same drawing indication) of 3-59 and small 2-157 inside the land zone rearrangement rearrangement district of the Ulsan-gu Incheon Metropolitan City, Ulsan-dong, Incheon Metropolitan City.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. Status of the parties

1) On March 10, 1993, the Defendant is the land subdivision rearrangement association with the approval of the land rearrangement project for the Ulsan-dong, Ulsan-dong, Ulsan-dong, Ulsan-dong, which obtained the approval of the land rearrangement project for KRW 70-3,00 (hereinafter referred to as the “Nogsan-dong,”) from the Ulsan Metropolitan City Mayor.

2) The Plaintiff Hodong District Housing Association (hereinafter referred to as the “Plaintiff Association”) was established to construct an apartment with a scale of 520 households on the ground of the first block No. 1 block No. 27,848m2 (hereinafter referred to as the “instant project site”) and three parcels of land reserved for replotting in the housing zone, and the Plaintiff Hanyang Construction Co., Ltd. (hereinafter referred to as “ Hanyang Construction”) is a company that engages in civil works, construction works, etc., and is the contractor that entered into a contract for construction works with the Plaintiff Association.

(b)approve the housing construction project plan;

On May 18, 2015 and May 29, 2015, the Plaintiff Mutual Aid Association obtained approval for the suspension of land substitution for the housing construction project from the Defendant, and obtained approval for the housing construction plan from the Ulsan Metropolitan City Mayor on September 18, 2015 in collaboration with the Plaintiff Hanyang Construction.

1) On June 2, 2017 and June 12, 2017, the Plaintiff Cooperative received a reply that “the Plaintiff Cooperative shall submit a written consent to the land use by the landowner, even though it requested that the waterworks facilities be installed at the housing site (including a sidewalk, and the connection point of the attached drawing award water) located in the housing zone and small 3-59 and small 2-157 road sites in the housing zone,” and that “the Plaintiff Cooperative shall submit a written consent to the land use by the landowner.”

2) On May 17, 2017 and June 19, 2017, the Plaintiff Cooperative requested that urban gas supply facilities be installed in the housing site (including a sidewalk, the connection point with urban gas supply stations indicated by drawings; hereinafter referred to as “in the case of the main point connected to the main point of the annexed drawing award waterworks”) within the housing zone, on May 17, 2017, and on June 19, 2017. However, it received a reply that “the land owner’s consent to land use should be given.”

(d) The division of measures against interference with construction; and

On September 26, 2017, the Plaintiff Union filed an application with Defendant and Defendant A for a provisional injunction against obstruction of construction works concerning waterworks facilities and installation of urban gas supply facilities (Ulsan District Court 2017Kahap10320), and the provisional injunction on November 9, 2017.

【Fact-finding without a dispute over the basis of recognition】 Each entry in Gap's 1 through 3, 7, 13 through 15 (including branch numbers for those with serial numbers; hereinafter the same shall apply), Eul's 1, and the purport of the whole pleadings

2. The assertion and judgment

A. The assertion

1) The plaintiffs

The plaintiffs are entitled to be supplied with tap water and urban gas by means of installing water supply facilities and urban gas supply facilities in the key land in accordance with Article 218 (1) of the Civil Act, since tap water and urban gas supply facilities can not be supplied to apartment buildings without installing water supply facilities and urban gas supply facilities, and it is installed in the land at the location of the road site in which a land readjustment and rearrangement project is completed almost. Therefore, the defendant does not interfere with or cause special damage to the progress of a land readjustment and rearrangement project. On the other hand, it causes excessive costs and inconvenience in selecting and installing other land. Therefore, the plaintiffs are entitled

2) Defendant

The plaintiffs can install waterworks facilities and urban gas supply facilities without passing through the key land, and they do not require excessive costs. On the other hand, when the plaintiffs install waterworks facilities and urban gas supply facilities through the key land, they will suffer significant damage to the execution of the land readjustment project.

B. Determination

1) A landowner may install necessary water supply pipes, minority pipes, gas pipes, electric wires, etc. without passing through another’s land, or require excessive costs. However, whether the place and method of causing damage to another’s land were chosen should be determined based on the geographical features, location and utilization relationship of the land between the two parties, adjacent geographical features, neighboring geographical features, understanding of the users of the adjoining land, and other all other circumstances (see, e.g., Supreme Court Decisions 85Meu129, Oct. 22, 1985; 2003Da18661, Jul. 14, 2005).

2) Comprehensively taking account of the following facts and circumstances acknowledged by adding up the aforementioned evidence and the purport of the entire pleadings to the statements and videos stated in Gap evidence Nos. 3 through 6, 8, 10 through 12, and 17, the plaintiffs need to install waterworks facilities and urban gas supply facilities necessary for apartment houses, or require excessive expenses, and to install waterworks facilities and urban gas supply facilities by passing the land at issue, and to install waterworks facilities and urban gas supply facilities to the defendant is the place and method in which the damage is the lowest to the defendant.

(1) Ulsan Metropolitan City Mayor on March 10, 1993, when authorizing a land readjustment project to the defendant on March 10, 1993

In addition to the condition that infrastructure, such as various public facilities, installed by the implementer, should be acquired and transferred to each management agency of the relevant facilities in the future, and the defendant obtained a final land substitution plan for the land zone including the land in question from the Ulsan Metropolitan City Mayor on September 18, 2007.

② The key issue for which the Plaintiffs intend to install waterworks facilities and urban gas supply facilities is a road site according to a land substitution plan. Since the road or sidewalk has already been created and it is expected that the ownership will vest in the north-gu of Ulsan Metropolitan City or Ulsan Metropolitan City, which is the managing authority of the facilities in the future, there is no room for the Defendant

③ On May 18, 2015 and May 29, 2015, the Defendant predicted to some extent the circumstances that water supply facilities and urban gas supply facilities are to be installed on the pertinent land by granting approval for the use of reserved land for the purpose of housing construction project to the Plaintiff Union.

④ On June 2, 2015, the Defendant notified on June 14, 2007, the Plaintiff: (a) at the time of the approval of the housing construction project plan by the Plaintiff to the head of Ulsan-gu Si on the application for the approval of the housing construction project; (b) on June 14, 2007, the housing site was determined as the apartment site; (c) the ownership of the land allotted in recompense for development outlay for development outlay, which is the project site, is allowed to be constructed; (d) the urban gas, telecommunication, water supply and drainage, electricity is completed among infrastructure in the housing district; and (e) some sections of the roads are allowed to be installed within the apartment project period; and (e) on September 7, 2015, the Plaintiff association confirmed on September 7, 2015, that the consultation with the relevant department (Ulsan Metropolitan City Green City Green City Park) on the construction of the gas purification facilities in the buffer green belt district; and (e) at the time of the installation of the gas pressure facilities, the Plaintiff and the housing complex were submitted.

The construction project plan was actively cooperate in obtaining approval.

(5) The project site is located in a lake area and cannot construct waterworks facilities and urban gas supply facilities without passing through the land owned by the defendant, and even if it is installed by passing through another person's land, not the land owned by the defendant, the owner's consent shall be obtained.

(6) Waterworks facilities and urban gas supply facilities are installed in the ground, not on the ground of a road site, so the defendant may proceed with the remaining process of a land readjustment project or manage other facilities in the lake district without any big difficulties.

7) As of June 30, 2017, in light of the fact that the progress rate of new apartment construction works is 87% as of June 30, 2017, there is a high possibility that the Plaintiffs may delay the approval for use of apartment buildings or the occupancy itself due to the requirement of considerable time to select other sites and install waterworks facilities and

3) Therefore, the Plaintiffs have the right to install waterworks facilities and urban gas supply facilities by passing the key land, to be supplied with tap water and urban gas supply facilities, and to seek confirmation as long as the Defendant is disputing.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted in its entirety due to the reasons, and it is so decided as per Disposition.