[1] Whether the owner of the surrounding land may seek the delivery of the land and the removal of the facilities in a case where the person who has the right to passage over the surrounding land excludes the possession of the owner of the land or constructs the facilities on the road

[2] The case holding that it is reasonable to determine the amount of compensation as the rent of the passage land during the period of use in consideration of all the circumstances where the person holding the right to passage over surrounding land compensates for the damages to the owner

[3] Requirements for acquiring the passage area by prescription, and whether the passage area can be acquired by prescription only with the long-time passage of a certain place without the establishment of a passage (negative)

[1] In a case where there is no passage between a certain piece of land and a public road, the owner of the land may pass the surrounding land to the public road, if it is impossible to reach the public road without passing over the surrounding land or requires a large amount of expenses, or if necessary, he may pass over the surrounding land. However, even if the right of passing over the surrounding land is recognized, he may not exclude the right of passing over the surrounding land, but may use the surrounding land within the scope of passing, and the owner of the surrounding land can only use and benefit from the surrounding land. However, the owner of the land bears only the duty of passing over, but only bears only the duty of passing over, if the owner of the right of passing does not occupy the surrounding land or installs the surrounding facilities on the road, the owner of the surrounding land may seek the transfer of the surrounding land and removal of such facilities.

[2] The case holding that even if the right of passage over surrounding land is recognized, the right of passage should compensate the damages of the owner of the surrounding land, and it is reasonable to determine the amount of compensation as the amount equivalent to the rent of the surrounding land during the period of use

[3] In order to acquire a new easement by prescription, it is necessary to continue and express pursuant to Article 294 of the Civil Code. In the case of a traffic easement, the owner of the dominant land has to have a new passage on the dominant estate and to continue to use it for a certain period under Article 245 of the Civil Code, and even if the owner of the land has long passed through a certain place without the passage, or he has silentd the passage through a neighboring part of the land, the servitude cannot be acquired by prescription on the sole basis of such fact.

[1] Articles 213 and 219 of the Civil Act / [2] Article 219 of the Civil Act / [3] Articles 245, 291, and 294 of the Civil Act

[1] Supreme Court Decision 75Da1330 delivered on May 11, 1976 / [3] Supreme Court Decision 65Da2305 delivered on September 6, 196, 2306

Nayang (Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)

Pedanite

September 23, 2003

1. The defendant

가. 별지 기재 토지 중 별지 도면 표시 ㅍ, ㅎ의 각 점을 연결한 선 ② 부분 위에 설치된 가로 1.6m, 세로 1.7m의 철재 대문을 철거하고,

B. Payment of 5,240,620 won and 20% interest per annum from August 8, 2003 to full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 80% is assessed against the defendant, and the remainder is assessed against the plaintiff.

4. Paragraph 1 can be provisionally executed.

The order No. 1-A and money No. 8,734,460 won and the above at the rate of 20% per annum from the day following the delivery of the copy of the claim and the application for change of reason to the full payment.

1. Basic facts

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, 6-1, 2, Gap evidence 2-5, 7, 8, Eul evidence 9-1 through 6, Eul evidence 2-1 through 8, Eul evidence 3, Eul evidence 4-1 through 6, results of on-site inspection, each of the records, results of each on-site inspection, the whole purport of the pleadings

A. The land listed in the separate sheet (hereinafter referred to as the “39-6 land”) was originally completed the registration of ownership transfer on June 9, 1976 due to the inheritance of property by Nabi, Nauri, Nauri and the Plaintiff, and the Plaintiff acquired the sole ownership by completing each share transfer registration on December 23, 1978 with respect to each share of Nabi, Nauri, Nauri, and the same day.

B. On September 3, 1976, the Defendant acquired ownership by completing the registration of ownership transfer due to sale and purchase of housing units on the same 35-15 square meters (hereinafter “35-15 square meters”) and on the ground.

C. On the other hand, the Defendant had no passage between 35-15 and 39-6 land. Of the 39-6 land, the Defendant was bound to use as a passage leading to the contribution of the attached map indication 7, 8, 2, 3, 9, 77, part of 14 square meters in the line connecting each point of the 39-6 land, the 14 square meters in line, the 14 square meters in line, and the 777, respectively (hereinafter “the instant passage”), and the Plaintiff implied the Defendant’s use of

라. 그런데 피고는 피고 소유의 위 주택의 대문을 설치함에 있어서 이를 35-15 토지 내에 설치하지 아니하고, 이 사건 통행지 내인 별지 도면 표시 ㅍ, ㅎ의 각 점을 연결한 선 ② 부분 위에 가로 1.6m, 세로 1.7m의 철재 대문(이하 '이 사건 대문'이라고 한다)을 설치하였다.

E. At present, only the Defendant uses the instant passage as a passage, and the Plaintiff is not particularly taking advantage of it as a passage.

F. The amount equivalent to the rent from January 1, 1995 to June 30, 2003 due to the possession and use of the instant road from January 1, 1995 is 5,240,620 won per annum (3%).

2. Judgment on the parties' arguments

A. The parties' assertion

The plaintiff asserts that the defendant installed the main gate within the land of this case owned by the plaintiff without a legitimate title, and that the defendant should remove it, and that even if it is inevitable to use the main gate as a passage for household affairs, the damages suffered by the plaintiff should be compensated for. Accordingly, the defendant asserted that the defendant has the right to passage over surrounding land of this case, acquired the right to pass over the main gate, acquired the right to use the exclusive land of this case, and renounced the right to use exclusive land of this case, so the plaintiff cannot respond

(b) Markets:

(1) Occurrence of the right of passage and removal of surrounding land and the obligation of compensation for damages

(A) In a case where there is no passage between a certain land and a public road for the use of the surrounding land, the owner of the surrounding land may pass the surrounding land to the public road if it is impossible or requires a large amount of expenses without passing over the surrounding land, and if necessary, a passage may be established. According to the above facts, the defendant acquired the so-called right of passing over the surrounding land that can pass over the surrounding land at the time of acquiring the ownership of the surrounding land. However, even if the right of passing over the surrounding land is recognized, the right of passing over the surrounding land may not be excluded, but the right of passing over the surrounding land can only be used within the extent of passing, but the owner of the passing land can only use the surrounding land and benefit therefrom, and only bears the duty of passing over the surrounding land. Thus, if the person having the right of passing over the surrounding land excludes the possession of the owner of passing over the surrounding land or constructs the surrounding facilities on the road, the person having the right of passing over the surrounding land may seek the delivery of the surrounding land and removal of such facilities (see Supreme Court Decision 7Da130, May 130, 15, 19, 1976

However, it is clear that the main text of this case established by the Defendant completely excludes the Plaintiff’s possession of the inside part of the traffic area of this case. Thus, the Defendant is obliged to remove the main text of this case, barring any special circumstance.

(B) Meanwhile, even if the right to passage over surrounding land is recognized, the owner of the passage shall compensate for the damages incurred by the owner of the passage, and in light of all the circumstances, including the fact that only the defendant uses the land as the passage route and the plaintiff does not particularly use and profit from it, it is reasonable to determine the amount to be compensated by the defendant as the amount equivalent to the rent of the land in this case during

(2) Whether the Defendant acquired the Defendant’s right to passage by prescription

Since the defendant asserts that he acquired the right of passage by prescription, it is necessary to continue and express by Article 294 of the Civil Act to acquire a new right of passage by prescription. In the case of the right of passage, the owner of the dominant land newly constructed a passage on the servient tenement and used it for a certain period as provided for in Article 245 of the Civil Act, and even if the owner of the dominant land has passed a certain place for a long time without the construction of passage, or there is a fact that the owner of the adjoining land has impliedly passed through a passage through a school, such fact alone is not enough to acquire the right of passage by prescription (see Supreme Court Decision 65Da2305, 2306 delivered on September 6, 196). The defendant's assertion in this part is without any evidence that the defendant opened the passage of this case as a passage, and this part of the right of passage of this case is without merit.

(3) Whether the Plaintiff waives his exclusive right to use and benefit

In addition, the defendant asserts that the plaintiff renounced his exclusive right to use and benefit from the land of this case. Thus, the defendant's assertion that the plaintiff gave up his exclusive right to use and benefit from the land of this case cannot be viewed as giving up his right to use and benefit from the land of this case on the ground that the plaintiff silented the passage of the land of this case to neighboring students. Thus, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the defendant is obligated to remove the gate of this case to the plaintiff and pay damages for delay at the rate of 20% per annum from August 8, 2003 to June 30, 2003, the following day after the written application for alteration of the purport of this case and its cause was stated, which is the period from January 1, 1995 to June 30, 2003, the amount equivalent to the rent for the road of this case from January 1, 1995 to June 10, 203, which is the period for which the plaintiff seeks, and to pay damages for delay at the rate of 5,240,620, which is the amount equivalent to the rent for the road of this case from January 1, 209 to June 10,

Judges Green Min-seop