2. The defendant's remaining appeal and the plaintiff's appeal are dismissed, respectively.

3. The total costs of a lawsuit shall be borne by each person.

4. In Section 1-A of the judgment of the court of first instance, "Indication 16, 17, 18, 19, 20, 22, 22, 23, 38, and 16 of the attached Form Map" is "Indication 16, 17, 18, 19, 20, 22, 23, 38, 29, 29, 23, 29, 29, and 16 of the attached Form Map", and Section 1-B of the order 1-B of the attached Form 29, 30, 31. 19, 20, 21, 32, 33, 34, 35, 37, 22, 23, 38, and 16 of the attached Form Map:

Defendant: The part against Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to that part is dismissed in entirety.

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1-7, Gap evidence 1-2-1 through 7, Gap evidence 3-6, Gap evidence 9-1 through 3, Eul evidence 1-1-2, Eul evidence 1-1 to Eul evidence 8-2, the result of each on-site verification by the court of first instance and this court, the result of the survey and appraisal of the appraiser Kim Yong-ran in the court of first instance, it can be acknowledged by adding to the whole purport of the pleadings as a result of the fact inquiry by the head of the Busan Metropolitan City North Korea Office of Busan Metropolitan City. < Amended by Presidential Decree No. 18574, Nov. 19, 2004>

A. The plaintiff is a regional housing association established with the authorization of the competent North-gu Office on August 24, 1989 in order to construct two apartment units with 200 households, which are apartment units in Busan-dong, Seocheon-dong, Busan-dong, Busan-do (24 members at the time of authorization) (the number of members was changed to 24 on November 55, 1989; 54 on April 19, 190; 104 on June 29, 199), and the defendant changed the name into the Housing Construction Promotion Act (the Housing Act was amended by Act No. 5908, Feb. 8, 199; Act No. 6596, May 29, 2003) with the aim of protecting the policyholders and occupants of housing units and supporting the smooth implementation of the housing construction project by conducting various guarantees, etc. related to the housing construction project.

B. On February 16, 198, before obtaining the authorization for the establishment of a housing association, the Plaintiff purchased from three persons, other than 145 mix 6,186 m2, Busan Northern-dong, Seocheon-dong, Busan, and 145-1 m2, and completed the registration of ownership transfer under the Plaintiff’s name on May 26, 1993.

C. On March 8, 2002, the Nam Il-dong Construction Co., Ltd. (hereinafter referred to as the "Seoul-do Construction") purchased three parcels, other than 132-66,774 square meters, adjacent to the land of this case, from the Seocheon-dong Special Metropolitan City, Seocheon-dong, Busan-dong, Busan-dong, and 132-66,74 square meters, and completed the registration of ownership transfer on June 21, 2002. On June 12, 2002, the registration of ownership transfer was completed on the ground of the above sale. On June 12, 2002, the registration of ownership transfer was completed to the Defendant on June 11, 11, 200 apartment houses with the size of 132-66 forest and 2,774 square meters, adjacent to the land of this case (hereinafter referred to as the "Yancheon-dong Construction Co., Ltd.") as the project proprietor, and completed the registration of the ownership transfer to the Defendant as the above construction project.

D. The road of this case, which is a concrete package in the vicinity of the land of this case, is the road of this case 132-67, Seocheon-dong, Busan (hereinafter referred to as the "road of this case"). The land of this case and the road of this case are forest land owned by the defendant and land of this case 132-74, Seocheon-dong, Busan (hereinafter referred to as the "2 surrounding land of this case"), which is the land of this case and the school site of Soyang-dong, Busan (hereinafter referred to as the "the surrounding land of this case") which is the land of this case, to enter the road of this case from the land of this case to the road of this case.

마. 한편 이 사건 1 주위토지 중 별지 도면 표시 ㉰부분에는 변전소 구조물, ㉱부분에는 지하 모터실, ㉲부분에는 폭 1.3m, 깊이 1m의 배수로, ㉳부분에는 콘크리트 옹벽, 별지 도면 표시 16, 38, 23의 각 점을 순차로 연결한 지점에는 길이 14.2m, 높이 7m의 함석 울타리가 각 설치되어 있었는데, 그 중 ㉰부분의 변전소 구조물과, ㉱부분의 지하 모터실은 모두 철거되어 현재 존재하지 않는다.

F. The Plaintiff did not apply for approval of a project plan within 2 years after its establishment, and the authorization for the establishment of a housing association was revoked on August 28, 191, and for 10 years thereafter, the said apartment building establishment project was not properly conducted for 10 years thereafter. The instant land was used as a dry field, etc., while the present state was only 10,00 square meters, the apartment building constructed on the land around the instant 1 primary land was completed and the inspection for use was completed.

2. Judgment on the parties' arguments

(a) Occurrence of a right to passage over the surrounding land;

(1) According to the above facts, since the land of this case is surrounded by the land owned by another person, including the land around 1 and 2 of this case, which is owned by another person, there is no passage leading to the road of this case, which is a contribution to the road of this case. Thus, the Plaintiff, the owner of the land of this case, has the right of passage to surrounding land to enter a public road pursuant to Article 219

(2) Judgment on the defendant's assertion

The defendant asserts that since the actual owner of the surrounding land of this case is not the trustee but the buyer, the claim for the right to passage over the surrounding land against the defendant should not be recognized. However, under the Trust Act, the truster transfers a specific property right to the trustee or disposes of it, and has the trustee manage and dispose of the property right for the purpose of the trust, and if the trustee completes the registration of ownership transfer in the future in the trust of real estate, the ownership is entirely transferred to the trustee externally and externally. Thus, the defendant's assertion based on the premise that the defendant is not the owner of the surrounding land of this case is not the

In addition, the defendant asserts that the plaintiff can not have the right to passage over surrounding land since he does not reside in the land owned by the plaintiff at all times, and there is a passage to access the plaintiff's land even without the defendant's land. However, since the owner of the above summary maintains the value of the land and has the right to maintain the right to use the land in a state where the plaintiff can use the land in a reasonable manner at any time, the right to passage over the surrounding land should be recognized within a reasonable extent (see Supreme Court Decision 87Da1156, Feb. 9, 198), regardless of whether it is actually used (see Supreme Court Decision 87Da1156, Feb. 9, 198). The fact that the land in this case and the road in this case have the surrounding land in addition to the surrounding land in this case. However, considering the result of on-site inspection conducted by the court of first instance and the court of the first instance, the whole purport of the argument as to the office of education in the Busan metropolitan District Office of Education in Busan Metropolitan City, which the plaintiff had already used as the passage.

(b) Scope of traffic rights over the surrounding land;

(1) The parties' assertion

The plaintiff asserts that since the plaintiff purchased the land of this case in order to build the apartment of 200 households, the right to passage over 6 meters in width necessary for obtaining the building permit should be recognized. Accordingly, the defendant asserted that on August 28, 1991, the authorization for establishment of the housing association against the plaintiff was revoked, and that the land of the part that the plaintiff asserts to be used as the access road is too serious and it is impossible to grant the building permit under the current laws and regulations, so it is not possible to recognize the right to passage over surrounding land within the scope necessary for the building permit because the land of the part that the plaintiff asserts to be used as

(2) Determination:

(A) Since the right of passage over surrounding land as stipulated in Article 219 of the Civil Act is particularly recognized to be used at the risk of causing damage to the owner of the right of passage for the purpose of public interest, which is the use of land without a passage necessary for its use, the width or location of the passage shall be considered. In determining the width or location of the passage road, the scope necessary for the owner of the right of passage to use the land should be permitted at least in light of the purport of the system. Determination of the necessary scope should be made based on the geographical features, location, shape and use of the land in a specific case according to social norms, the degree of necessity should be determined based on the interests of the owner of the land beyond the scope necessary for the future construction permission, not on the ground that the owner of the land should have access to the land in advance to the land. It should be determined on the basis of the following circumstances: (a) It is necessary to protect the owner of the land beyond the scope of the construction permission or the necessity of the construction permission to use the land.

(B) Comprehensively considering Article 3 of the Regulations on Standards for Housing Construction, etc. for the instant case, Article 16(1) of the Housing Act, and Article 10(1) of the Enforcement Decree of the Housing Act, an access road of at least 6 meters should be secured to construct apartment buildings with at least 20 but less than 300 households on the instant land. In light of this, if the Plaintiff intended to construct apartment buildings with at least 20 households on the instant land fails to secure access roads over a 6-meter wide, it is not likely to appropriately use the instant land because it is impossible to obtain a construction permit. Meanwhile, the Plaintiff purchased the instant land with the knowledge that there is no access road surrounded by another person’s land. On August 24, 1989, the Plaintiff was authorized to establish a housing association on the first-class 20 square meters of the instant land, but the Plaintiff appears to have been able to secure access roads to the surrounding apartment buildings, and the remaining part of the instant land that is a general residential area for at least 10 years and 40-64 square meters of the instant land.

(C) Ultimately, considering the aforementioned circumstances, it is reasonable to view the scope of the Plaintiff’s exercise of the right to passage over surrounding land as a part of the ship connected with each of the above points in sequence of 29,30,319, 200, 21, 23, 29, 29, 16 among the surrounding land of this case, to the extent that the person can have access to the road of this case, which is a contribution from the land of this case, and the width is secured to the extent that the Defendant does not interfere with the inside use of the apartment constructed on the land of this case. In other words, the part of the attached Form No. 16, 17, 18, 19, 19, 32, 34, 36, 37, 29, 29, 29, 37, 29, 37, 29, 37, 29, 29, 37, 29, 20.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above recognition scope, and the remaining claims shall be dismissed as without merit. Since the part of the judgment of the court of first instance against the defendant who ordered the extraction of the ground scam room in the above part of the court of first instance is unfair, it shall be revoked by receiving part of the defendant's appeal, and the plaintiff's claim corresponding to that part shall be dismissed. The defendant's remaining appeal and the plaintiff's appeal shall be dismissed, and it shall be corrected ex officio because there is an obvious clerical error in the decision of first instance.

Judges Park Jae-young (Presiding Judge)