통행권확인 등
1. The plaintiff (appointed party)'s appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).
The reasoning of this court regarding each part of the judgment on the defense of the plaintiff's defense of defense is that of the judgment of the court of first instance, and therefore, it is accepted by the main sentence of Article 420 of the Civil Procedure Act as it is.
Unlike the area for passage, the adjacent land owner's right of passage is always fixed to a specific place. Therefore, when the owner of the surrounding land alters the method of use of the land which has been used as an existing passage according to the method of use, the owner of the surrounding land has no choice but to move it to another place which has less damage on behalf of the owner of the surrounding land.
In addition, since the right of passage over surrounding land is particularly recognized at the risk of damage to the owner of the land under way for the public interest, which is the use of land without a passage necessary for its use between the public interest and the public interest, the method of determining the width, location, etc. of the road should be considered less than the least damage to the owner of the land
[see, e.g., Supreme Court Decision 2008Da75300, 75317, 75324, Jun. 11, 2009). Moreover, barring any special circumstance, it is impermissible for the owner to waive the right of use and profit belonging to the core functions of ownership.
If this is allowed, it is against the legal principle of real rights under the Civil Code because only the disposal authority creates a new type of ownership that remains.
Therefore, in a case where private land is used as a road for the general public traffic, even if the land owner voluntarily provides part of the land as a road site, barring any special circumstance, it does not abandon the right to use and benefit from the road site on a commercial basis, but gives up the right to use and benefit from the land to the persons who have been provided as a site free of charge.