[1] Whether a tort under the Civil Act is committed in a case where an infringement on a specific person’s freedom of passage by obstructing the passage of public roads (affirmative), and whether the infringing person’s right of passage can bring a lawsuit against the prohibition of passage obstruction (affirmative)

[2] The meaning of "landway" as referred to in Article 185 of the Criminal Code, and in a case where a certain road constitutes a public road for the passage of the general public, whether the free passage of the general public is guaranteed by the general traffic obstruction under the Criminal Code (affirmative)

[3] Whether the claim for removal, possession transfer, or prohibition of passage against the local government that occupied and managed by the owner of a site for a road for public use in the general public constitutes an abuse of rights (affirmative in principle)

[4] In a case where Party A, as the sole passage to and from the inspection of Party B, was designated as an agricultural and fishing village road under Article 2(1) of the Act on the Maintenance and Improvement of Agricultural and Fishing Villages and managed the roads used by its neighboring residents for not less than 30 years, and Party C purchased the forest and fields on which the said roads were located in a voluntary auction procedure against Party A seeking removal and delivery of the roads against the local government, the case holding that the said roads constitute a public road, namely, a public road for the general public traffic, and Party C’s claim is highly likely to be an abuse of rights, but the lower court erred by misapprehending the legal doctrine

[1] Unless there are special circumstances such as infringement of the rights, etc. of other persons with respect to a road, a person who intends to pass through a public road, which is an unspecified number of general public, is free to pass the road by the same way as other persons within the scope necessary for daily life, and a third party infringes on the freedom of passage of a specific person by causing interference with daily life by causing interference with passage of the road only for a specific person, the act constitutes a tort under the Civil Act, and the infringing person may seek a prohibition of interference with passage to prevent the elimination of interference or future interference.

[2] Article 185 of the Criminal Act provides that “A person who damages, destroys, or destroys a road, waterway, or bridge, or obstructs traffic by any other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” Here, “land” refers to a place of public passage, that is, a place of public character where many and unspecified persons, or vehicles and horses are allowed to freely pass through without any specific person, and is also a meritorious deed. The ownership relation of the site or the right to passage, or the right to passage, is not open to the public, and even if the owner of the site is the owner of the site, any act making it impossible to pass through the road by means of cutting or debrising obstacles at the middle of the road constitutes a general traffic obstruction. Accordingly, if a road is a public passage, that is, a road that constitutes a public service, free passage of the general public may also be guaranteed by a general traffic obstruction under the Criminal Act.

[3] If a certain piece of land is used for public passage, i.e., a road for public use, regardless of the process of opening a road, the exercise of ownership of the site is restricted, and this constitutes social constraints on the property rights that the owner should recognize. Therefore, a claim against the local government that occupied and managed the land for public use for removal, occupation, transfer, or prohibition of passage should be deemed as an abuse of the right that is not permitted in principle under the legal order.

[4] The case holding that in a case where Party A, as the sole passage of Party B’s local government, was designated as an agricultural and fishing village road under Article 2(1) of the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages for more than 30 years, and Party C, who purchased a forest on which the said road was located, sought removal and delivery of the road against Party A against the local government, the case held that the judgment below erred by misapprehending legal principles, even though it is highly probable that Party A’s purchase of the said forest and fishing ground in a voluntary auction procedure with knowledge of such utilization was an abuse of right to seek removal and delivery of the road against the local government Party A while designating Party A as an agricultural and fishing village road under the Act on the Maintenance and Improvement of Road in a long time and managing Party A as a rural Road in an agricultural and fishing village for more than 30 years.

[1] Article 750 of the Civil Act / [2] Article 185 of the Criminal Act / [3] Articles 2(2), 213, and 214 of the Civil Act / [4] Articles 2(2), 213, 214, and 750 of the Civil Act; Articles 2(1), 5(2), 6, 7, 8, 10, and 18 of the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages; Article 185 of the Criminal Act

[1] Supreme Court Decision 2010Da63720 Decided October 13, 201 (Gong2011Ha, 2330) / [2] Supreme Court Decision 88Do18 Decided April 25, 198 (Gong198, 929) Supreme Court Decision 2001Do6903 Decided April 26, 2002 (Gong2002Sang, 1310), Supreme Court Decision 2017Do1056 Decided April 23, 2019 / [3] Supreme Court Decision 93Da26076 Decided September 28, 193 (Gong193Ha, 2968)

Plaintiff

Kimcheon-si (Law Office General Law Office, Attorney Lee Dong-soo, Counsel for the defendant-appellant)

Daegu District Court Decision 2019Na303788 Decided April 28, 2020

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. Relevant provisions and legal principles

A. Unless there exist special circumstances, such as infringement of the rights, etc. of other persons with respect to a road, a person who intends to pass through a public road, which is an unspecified number of the general public, is free to pass the road by the same way as other persons within the scope necessary for daily life, and a third party infringes on the freedom of passage of a specific person by causing interference with daily life by causing interference with the passage of the road only for a specific person, the tort under the Civil Act constitutes tort under the Civil Act. The infringing person may file a lawsuit against interference with passage to prevent the exclusion of interference or future interference (see, e.g., Supreme Court Decision 2010Da63720, Oct. 13, 201).

B. Article 185 of the Criminal Act provides that “A person who damages or destroys a road, waterway, or bridge, or obstructs traffic by any other means shall be punished by imprisonment with prison labor for not more than ten years, or by a fine not exceeding 15 million won.” Here, the term “land” refers to a place of public passage, that is, a place of public character where many and unspecified persons, or vehicles and horses are allowed to freely pass through without any specific person (see Supreme Court Decision 2017Do1056, Apr. 23, 2019). It is also a place of public character in which general traffic is available (see Supreme Court Decision 2017Do1056, Apr. 23, 2019). The ownership relation, traffic right relation, or traffic congestion of the site is not set aside under the Criminal Act, and even if the owner of the site is a person, an act of interference with traffic of the general public can be deemed to constitute a violation of general traffic by taking advantage of any obstacle on the road.

C. In a case where a certain piece of land is used for public passage, i.e., a road for public use, regardless of the process of its establishment, the exercise of ownership of the site is restricted, and this constitutes social constraints on the property rights that the owner should recognize. Therefore, a claim against the local government occupying and managing the land for public use for removal, occupation, transfer, or prohibition of passage of the road provided for public use should be deemed as an abuse of the right that is not permitted in principle under the legal order (see Supreme Court Decision 93Da26076, Sept. 28, 1993, etc.).

D. Meanwhile, the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages defines roads located in the area of Eup or Myeon, which are officially used in the traffic convenience and production and distribution activities, etc. of residents in agricultural and fishing villages, as “rural roads” (Article 2(1)), and the head of a Gun formulates and systematically manages a master plan, a maintenance and improvement plan and a project plan in an agricultural and fishing village (Articles 6, 7, and 8). In a road area, a person who intends to install, rebuild, alter, or remove artificial structures, things, or other facilities, or occupy and use roads for other purposes shall obtain permission from the head of a Gun (Article 18), a person other than the head of a Gun shall obtain permission from the head of a Gun (Article 5(2)), and a person who intends to repair a road, other than the head of a Gun, shall obtain permission from the head of a Gun (Article 10).

2. Determination as to the instant case

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On January 23, 2014, the Plaintiff purchased forest land of 59,504 square meters ( Address 1 omitted) in a voluntary auction procedure and completed the registration of transfer of ownership.

(2) The instant forest land has a road indicated in the attached list of the lower judgment (hereinafter “instant road”), which is the only passage to and from the temple “○○○○,” located within 793 square meters of a historic site in Kimcheon-si, Kimcheon-si ( Address 2 omitted), and is used by neighboring residents as well as by the Buddhist inspection.

(3) Since the building of “○○○○”, the instant road was naturally formed as part of the Saemaul Project around 1985. A cement packing was made as part of the Saemaul Project. Around 1994, the Defendant, a local government, recognized it as a “public contribution for the convenience of transportation, production, and distribution of residents in rural communities,” and designated it as an agricultural and fishing village and managed it for at least 30 years.

B. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the instant road was naturally formed for a long time, and that the Defendant, a local government, constitutes a contribution offered to the general public in the course of managing it as an agricultural and fishing village under the Act on the Maintenance and Improvement of Agricultural and Fishing Villages, while managing it for not less than 30 years. It is highly likely to deem that the Plaintiff seeking removal and delivery of the instant road against the Defendant during the voluntary auction procedure with knowledge of such utilization.

C. Nevertheless, the lower court rejected the Defendant’s abuse of rights defense and accepted the Plaintiff’s claim for removal and delivery on packaging. In so determining, the lower court erred by misapprehending the legal doctrine on meritorious services, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)