(b) Scope of right of passage over surrounding land under Article 219 of the Civil Act;

C. Whether a captain has not exercised his/her right to seek compensation for damages under Article 219 of the Civil Act in cases where only a claim for damages is filed on the premise that he/she is an illegal possession (affirmative)

B. The scope of the right of passage over surrounding land as stipulated in Article 219 of the Civil Act is not limited to the extent that people can walk up, but it should be recognized by the passager up to the width of the passage necessary to lead a daily life by entering a house.

C. Whether to issue an order for compensation for damage under Article 219 of the Civil Act and the scope thereof shall be determined by the parties’ claim and proof. Thus, if the land possession is seeking compensation on the premise that it is illegal possession, and if the court does not seek compensation for damage under the above statutory provisions, it cannot be said that there was an error of incomplete deliberation in its failure to exercise its right of explanation, such as recommending the claim and demanding proof.

The costs of appeal shall be assessed against the plaintiff (Counterclaim defendant).

1. Regarding ground of appeal No. 1

In a case where a land which cannot be formed through a public road due to a division or a partial transfer of the land has occurred, the right to passage for the land partitioned or partially transferred is limited to the previous land before the division or partial transfer, and in such a case, the provisions of Article 220 of the Civil Act, which purport that no liability for compensation for passage exists, shall be applied directly to the partitionr and only between the parties to the partial transfer and in the case of the specific succession to the land or the right to passage, it shall be determined whether the right to passage has been established (see, e.g., Supreme Court Decisions 65Da950, 951, Dec. 28, 1965; 84Meu921, 922, Feb. 8, 1985).

According to the facts duly established by the court below, the site ( Address 1 omitted) in the Goyang-gun, the defendant (Counterclaim Plaintiff; hereinafter the defendant) was divided into the land owned by the non-party 1 on December 24, 1969 and at the same time the ownership transfer registration was made in the name of the defendant was made on September 14, 1984, and the above ( Address 2 omitted) return was made to the non-party 2 on September 14, 1984. Thus, Article 220 of the Civil Act cannot be applied to this case, and Article 219 of the Civil Act shall be applied. The judgment of the court below to the same purport is correct, and there is no error of law by misunderstanding the legal principles of the right to passage over surrounding land as pointed out by the theory of lawsuit.

2. Regarding ground of appeal No. 2

The scope of the right of passage over surrounding land under Article 219 of the Civil Act is not limited to the extent that people can walk up, but should be recognized by the passager up to the limit of the width necessary for them to enter a house and live a daily life (see, e.g., Supreme Court Decisions 87Meu2127, Nov. 8, 198; 8Meu9364, Jul. 25, 1989).

According to the facts duly established by the court below, the site of this case is surrounded by the land owned by the plaintiffs and the land owned by the above non-party 2 in the direction other than the road. On the site of this case, the building owned by the defendant is surrounded by the above non-party 2, and there is a river embankment, which is used as a wide road where the truck can move to the east from the above building to the east, and there is a concrete packing road at a point of about 60 meters away from the south or north, and there is no road leading to the south or north side of the building owned by the defendant, and the west side of the building up to the south/North and north side of the building owned by the defendant is installed with a vinyl house, and the west side of the river bank is a miscellaneous land with the exception of the road that the defendant used for the above road. Thus, the defendant's use of the part of the land on the east side of the site of this case is the most convenient for him and it is the least possible for the defendant to use the part of the land as well-owned land.

3. As to the third ground for appeal

Article 219 of the Civil Act provides that the owner of the land adjacent to the land shall compensate for the damage of the owner of the land adjacent to it. However, the issue of whether to issue an order to compensate for the damage and the scope of such order shall be determined by the claim and proof by the parties. Thus, in a case where it is evident in the record that the plaintiffs only seek compensation on the premise that the possession of the land in this case is illegal possession, and do not seek compensation for the damage under the above provision of the Act, there is no error of incomplete deliberation or incomplete reasoning in the situation where the court below did not exercise its right of explanation, such as recommending the claim and demanding proof, and the precedents of the lawsuit are not appropriate in this case. The above issue is without merit.

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 Choi Jae-ho (Presiding Justice)