2. The total cost of the litigation (including the first instance court) shall be borne by the Plaintiff (Appointed Party).

[Ground for Recognition: Facts without dispute; Gap evidence 1 through 8 (including paper numbers); the result of the on-site inspection conducted by this court; the result of the survey and appraisal conducted by appraiser Park Round; the purport of the whole pleadings]

A. Nonparty 1 purchased a forest land of 3,940 square meters (hereinafter referred to as “land before the instant subdivision”) from Nonparty 2 in Jeju-si, and sold the same part of the forest land of 2287 square meters (hereinafter referred to as “Plaintiff-owned land”) at Jeju-si, in around October 1994, when the ownership transfer registration was not completed, to the Plaintiff and Nonparty 3 (the births of the Plaintiff).

B. As to the shares of 1652.4/3940 of the land before the partition of this case, each registration of ownership transfer was completed on March 15, 1995 for the shares of 1652.4/39 of the land before the partition of this case and on March 22, 1995 for the shares of 1143/390, respectively.

C. On May 30, 1995, the Plaintiff, Nonparty 3, and Nonparty 1 divided the land before the instant partition into the said Plaintiff’s land and 1653.2 square meters of forest land (hereinafter “Defendant-owned land”) at Jeju-si, respectively. On December 6, 1997, the land owned by the said Plaintiff as the method of partition of co-owned property on December 6, 1997 is owned by the Plaintiff and Nonparty 3 (one-half co-ownership shares), and the said land owned by the said Defendant completed the registration of ownership transfer in the future of Nonparty 1.

D. The Plaintiff purchased the land owned by the said Plaintiff and then installed eight tombs of first-class relatives to use them as family graveyardss, and is expected to change the graves of other sculptures.

마. 위 원고 소유 토지는 위 피고 소유 토지 등 타인 소유의 토지에 둘러싸여 있는데, 원고는 별지 도면 표시 ㅁ, ㅂ, ㅅ, ㅇ, ㅈ, ㅊ, ㅋ, ㅌ, ㅍ, ㅎ, ㄱ’, ㄴ’, ㄷ’, ㅁ의 각 점을 순차 연결한 선내 나, 라 부분을 통로(공로에 이르는 가장 가까운 통로로서, 아래에서는 ‘이 사건 통로’라고 한다)로 사용하여 공로와 위 원고 소유 토지 사이를 출입하면서 분묘의 설치, 성묘, 벌초 등을 하였고, 소외 1은 이에 대하여 별다른 이의를 제기하지 않았다.

F. However, on November 25, 2002, the Defendant purchased the above Defendant’s land from Nonparty 1 and completed the registration of ownership transfer in the future, and installed a stone and cement fence in accordance with the boundary of the above Defendant’s land. In the vicinity of the part included in the attached drawings, approximately 3 meters in length, and 1m high, and the steel structure and locks (a structure indicated in the attached drawings) were installed, respectively, and the part connecting the points of the attached drawings e., e., and c., “c.” (the fence was installed between the Plaintiff’s land and the above Defendant’s land, but the fence was opened for entry, without installing a fence) was installed at approximately 3m in length, and approximately 1.2m high-water fence (a structure indicated in the attached drawings).

G. The Plaintiff, due to the construction of the Defendant’s above structure, must do so beyond the Defendant’s fence in order to enter the said Plaintiff’s land via the passage of the instant case.

H. Meanwhile, Nonparty 3 died on December 25, 2001, and Nonparty 1,2,3,4, and 5 jointly inherited Nonparty 3’s co-ownership on the land owned by the said Plaintiff.

2. As to the right of passage over surrounding land under Article 219 of the Civil Act

A. Formation of a right of passage over the surrounding land

The facts that the above land owned by the plaintiff is surrounded by the above land owned by another person, including the above land owned by the defendant, and the passage nearest to the contribution from the above land owned by the plaintiff is the passage of this case located in the above defendant's land. According to such recognition facts, the above land owned by the plaintiff has no passage necessary for the use of the land between the public service and the public service, and the plaintiff, the owner of the land, is not allowed to enter the public service unless he uses the land owned by the defendant as a passage or a passage. Thus, the plaintiff has a right of passage to the surrounding land owned by the defendant for access to the public service.

[The defendant's right of passage over surrounding land is recognized as the plaintiff's right of passage over the land owned by the defendant's household, but the plaintiff may pass over the above defendant's land beyond the fence installed by the defendant and pass over the above plaintiff's land to the above plaintiff's land owned by the defendant, and since the defendant does not interfere with the plaintiff's right of passage over surrounding land, the plaintiff asserts that there is no benefit in seeking confirmation of the right of passage over surrounding land, but it cannot be viewed as a passage by the obstacle that obstructs passage over the surrounding

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

(1) The plaintiff's assertion

원고는 그 범위에 관하여 성묘, 벌초, 분묘의 설치 및 이장, 비석과 상석의 설치, 식목 조경, 벌초 후의 초목의 반출 등을 하기 위하여 차량의 출입이 필수적이므로 위 피고 소유 토지 중 폭 3m의 통로(별지 도면 표시 ㄹ’, ㅁ’, ㄴ’, ㅂ, ㅅ, ㅇ, ㅈ, ㅊ, ㅋ, ㅌ, ㅍ, ㅎ, ㄱ’, ㅂ’, ㅅ’, ㅇ’, ㄹ’의 각 점을 순차 연결한 선내 나, 바 부분 136㎡)를 통행할 권리가 있다고 주장한다.

(2) Determination

In light of social norms, the scope of the right to passage over surrounding land should be acknowledged within the scope of the least possible method, as well as the person with the right to passage over surrounding land. Ultimately, the scope of the right to use surrounding land should be determined in consideration of the topography, location and use relationship of the surrounding land, understanding room of the surrounding land users, and other various circumstances, and it should not be determined as the way to use the surrounding land in advance (see Supreme Court Decisions 2002Da9202, May 31, 2002; 96Da343, 3440, Nov. 29, 196; 1) the right to use the surrounding land to use the land is not likely to have been established for the purpose of using the surrounding land; 2) the right to use the above land to use the land from the first place to the first place to the first place to the first place to the public; 3) the right to use the land to use the land after the construction of the land to the extent of its usage after the construction of the land.

However, in a case where it is not recognized that the specific passage part for confirmation by asserting that there exists a right of passage over surrounding land meets the requirements under Article 219 of the Civil Act, the claim of this case shall be dismissed in principle even if the right of passage over surrounding land is recognized in another part of land (see Supreme Court Decisions 2004Da51757, 51764, Dec. 24, 2004; 91Da47086, 47093, Jul. 24, 1992, etc.). Ultimately, the plaintiff's claim of this case is unfair since it exceeds the purpose of passage over surrounding land.

C. Determination on the removal part of the wall

원고는 청구취지 기재와 같은 폭 3m의 통로에 대하여 주위토지통행권이 인정됨을 전제로 별지 도면 표시 ㅋ, ㅊ의 점을 연결할 위치에 있는 담장 3.02㎡의 철거를 구하고 있다.

In order to have access to the land owned by the Defendant, the Defendant constructed a steel structure, which is a facility for access control to the land owned by the Defendant, and used this part as a connecting passage to the public road, and installed a fence in the part for which the Plaintiff seeks removal, as seen earlier. However, even though the Plaintiff could have access through the said part of the association, the method of removing the said fence, which is a method of costing for the Defendant, exceeds the scope of the purpose of the right to passage over surrounding land of this case, and thus, the Plaintiff’s claim for this part is without merit.

3. As to the right of passage over surrounding land under Article 220 of the Civil Act

The plaintiff's land owned by the plaintiff was divided from the land before the division of this case. Thus, the plaintiff et al. asserted that the plaintiff et al. has the right to pass over the above defendant's land to the defendant who is the successor of the division owner pursuant to Article 220 of the Civil Act. However, in a case where there is a land which is unable to go through public service due to a division or a partial transfer of the land, Article 220 (a) of the Civil Act, the right to pass over and use the land recognized by the owner of the previous land before the division or a partial transfer shall apply only to the person directly divided and the parties to the partial transfer (see Supreme Court Decision 96Da3343, 33440 delivered on November 29, 196). As seen above, the defendant is a specific succession of the above defendant's land owned by the defendant, which

4. Conclusion

Therefore, the plaintiff's claim for exchange change in this court is dismissed because all of the claims are without merit.

[Attachment Omission of List of Selections]

Judges Shin Sung-sung (Presiding Judge) (Presiding Justice)