[통행방해배제][공1994.2.1.(961),361]
Scope of application of Article 220 of the Civil Act on Right of Passing over Surrounding Land
Where a part of a parcel of land owned by the same person becomes unusable due to the transfer of land, the right to passage over the surrounding land for the sake of the plot of land shall only be granted to the previous land owned by the transferor prior to the partial transfer, and the right to passage over the surrounding land shall not be granted to the land owned by another person, and the right to passage over the surrounding land shall also include not only the transfer of a part of a parcel of land, but also the transfer of a part of a parcel of land
Article 220 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Young-chul and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee)
Plaintiff 1, et al., Counsel for the plaintiff-appellant
Defendant (one person: ○○○) (Attorney Cho Chang-won, Counsel for the defendant-appellant)
Jeju District Court Decision 91Na926 delivered on April 15, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. On the first ground for appeal
The court below recognized the fact that the land portion of this case was a road according to a replotting disposition on August 31, 1972 under the Land Readjustment Projects Act, and its land category was a road, but it was not actually constructed through a road before and after that, and thus, it did not have been provided once to the general public, and if the factual basis is the same, the plaintiff's right of free passage for the land portion of this case shall not be recognized.
In the same purport, the court below is just in holding that the general public, including the plaintiff, cannot be deemed to have practically and specifically infringed on the right to freedom of passage or the benefits of use of the land of this case. In so doing, the court below did not err by misapprehending the legal principles as to the right to replotting or the right to use the road or the right to use it
2. On the second ground for appeal
The court below held that since the part of the land of this case is nothing more than that provided for the passage of the general public, and since the plaintiff occupied the land of this case before the plaintiff acquired the land of this case before it was possessed by the defendant, it does not function as a contribution to the above land owned by the plaintiff, the defendant's possession of the land of this case does not interfere with the above land owned by the plaintiff. Thus, the court below's fact-finding and decision are just and there are no errors in the misapprehension of legal principles as to the right to claim for the removal of interference. The argument is without merit.
3. On the third ground for appeal
In a case where a part of the land owned by the same person is assigned and cannot be used for a public road, the right to passage over the surrounding land for the purpose of the land is only created only for the previous land owned by the transferor prior to the partial transfer, and the right to passage over the surrounding land is not recognized for the land owned by another person, and the right to passage over the surrounding land is also partially transferred not only for the transfer of a part of the land, but also for the transfer of a part of the land owned by the same person. (See Supreme Court Decisions 84Meu921, 922 delivered on February 8, 1985; 70Da337 delivered on May 12, 1970, respectively)
The judgment of the court below to the same purport is just and there is no error by misapprehending the legal principles as to the right to passage over surrounding land.
4. Therefore, the appeal is dismissed and all 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 Chocheon-sik (Presiding Justice)