[1] In a case where one or more lands requiring a passage road are to be used through one or more lands leading to a meritorious deed because they are not adjacent to the public road, whether the owner of the franchise may seek a right to passage over the surrounding land, among the lands leading to a meritorious deed, on which a passage has not been permitted (affirmative)

[2] The criteria for determining the width and location of the passage route in a case where the passage right of surrounding land is recognized under Article 219 of the Civil Code

[3] In a case where Party A’s land adjoining to Party B’s land that was leased upon Party A’s local government test, and the leased land adjoining to Party B’s land, and part of Party B’s land was used as a passage since there was no passage between Party A’s land and the leased land and the public road, the case holding that Party A should have the right to passage over the surrounding land

[1] In a case where land requiring a passage road is to be used through one or more lands leading to a meritorious deed because it is not adjacent to the public road, and if one or more lands are passing through a road by the owner of a part of the land, it is unnecessary to seek a right to passage over the surrounding land. Therefore, the owner of the land may seek a right to passage over the surrounding land only for the remaining land of which passage is not permitted among the lands leading to

[2] Since the right of passage over surrounding land under Article 219 of the Civil Act is particularly recognized at risking the damage of the owner of the right of passage to the public interest, which is the use of the land without a passage necessary for its use between the land and the public interest, the width or location of the road shall be determined by considering the method with less damage to the owner of the right of passage. However, at least the scope necessary for the owner of the right of passage to the land to use the land should be permitted. The degree of necessity should be determined based on the geographical features, locational features, form and use relation of the land between the parties, neighboring geographical features, and surrounding geographical features, and the degree of necessity should be determined according to social norms.

[3] In a case where Party A’s land adjoins to Party B’s land leased after a local government test, and Party B’s land adjoins to Party B’s land, and Party B’s land is used as a passage because there is no passage between Party A’s land and the loan’s land and the loan’s public road, the case holding that Party A should recognize Party A’s right of passage to the surrounding land on the following grounds: (a) there is no passage between Party A’s land and the loan’s public road; (b) there is no passage between Party A’s land and the loan’s public road; (c) the area of the road already used is limited to 27 square meters; (d) the passage road is the shortest distance from Party A’s land to the public road through the loan’s land; and (e) there is no serious obstacle to Party B’s urban railroad.

[1] Article 219 of the Civil Act / [2] Article 219 of the Civil Act / [3] Article 219 of the Civil Act

[2] Supreme Court Decision 96Da10171 Decided May 14, 1996 (Gong1996Ha, 1860), Supreme Court Decision 2003Da18661 Decided July 14, 2005 (Gong2005Ha, 1308), Supreme Court Decision 2005Da70144 Decided June 22, 2006 (Gong2006Ha, 1249)

Plaintiff (Attorney Yellow-ho et al., Counsel for plaintiff-appellant)

Defendant (Attorney Kim Sung-sung, Counsel for defendant-appellant)

Daegu District Court Decision 2009Da82524 Decided September 30, 2010

April 20, 2011

1. Revocation of the first instance judgment.

2. Of the claim for confirmation of the right to passage over surrounding land among the claim for the second preliminary principal claim filed by the Plaintiff (Counterclaim Defendant), the Defendant (Counterclaim Plaintiff) confirmed that the Plaintiff (Counterclaim Defendant) has the right to passage over surrounding land regarding the part (B) and 27m2 of the attached Form No. 1, 2, 3, 4, 5, and 1, in sequence, among the 378m2 and 1,765m2 in Busan-do, Busan-do, that connecting the Plaintiff (Counterclaim Defendant) in order. The Defendant (Counterclaim) shall not obstruct the passage of the Plaintiff (Counterclaim Defendant) on the part (B), and shall not install any obstacles that interfere with the passage of the Plaintiff (Counterclaim Defendant).

3. The plaintiff (Counterclaim defendant)'s primary and primary main claim and the defendant (Counterclaim plaintiff)'s counterclaim are dismissed, respectively.

4. The total costs of the lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) in total, including the principal lawsuit and the counterclaim.

1. Purport of claim

(a) Main claim;

1) The main claim: The Defendant (the Counterclaim Plaintiff; the hereinafter “Defendant”) shall implement the procedure for the registration of ownership transfer on the ground of donation on January 20, 1982 with respect to the portion (B) 27 square meters in the attached Form No. 1, 2, 3, 4, 5, and 1 among the 378 m2,000 m2,000 m2,000 m2,000 m27 m27 m2.

2) Preliminary principal claim: The Defendant shall implement the procedure for registration of the establishment of the traffic area on January 20, 2002, with respect to the portion of 27 square meters in the attached map No. 1, 2, 3, 4, 5, and 1 among the areas of 1,765 square meters in Busan-do, Busan-si and 378, Busan-do, as to the Plaintiff on January 20, 2002 (the Plaintiff sought implementation of the procedure for registration of the transfer of ownership based on the completion of the acquisition by prescription on the above date at the first instance court, but amended the purport of the claim in the trial).

(iii) the second preliminary principal action

(A) The Defendant confirms that, in the order of 378 1,765 m3,00 m3,00,000 m3,000 m3,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000,0000 m27 m27 m2,000,000 m2,0000 m2,0000 m2,000,0000 m2,0000 m2,000.

(b) Counterclaim;

The Plaintiff shall not pass a part (B) on the ship, which connects each point of 1, 2, 3, 4, 5, and 1 in the attached Form No. 1, 2, 3, 4, 5, and 1 among the areas of 1,765 square meters in Gyeyang-dong, Busan Metropolitan City.

2. Purport of appeal

The judgment of the first instance court is revoked, and the judgment, such as the purport of the principal lawsuit, is sought. The defendant's counterclaim is dismissed.

A principal lawsuit and a counterclaim shall be deemed to be combined.

1. Facts of premise;

A. On July 24, 1981, the Plaintiff owned since the completion of the registration of ownership transfer in the Plaintiff’s future on July 24, 1981. The land owned by the Defendant was owned by the Defendant since the completion of the registration of ownership transfer on September 10, 1980 on September 10, 1980.

B. Since the completion of the registration of ownership transfer on August 3, 1964, the land owned by the Plaintiff for the land of 2,380 square meters (hereinafter “the land owned by the Plaintiff”). Among the above forest land, the land of 1,000 square meters adjacent to the land owned by the Defendant for the land of 378 square meters (hereinafter “the Plaintiff’s loan land”) was cultivated by Nonparty 1, who is the Plaintiff’s punishment, from Simsan-si on August 12, 2004. The Plaintiff’s name of the loan was changed to the Plaintiff’s name of the loan around December 31, 2012, the Plaintiff entered into a loan agreement by December 31, 2012, and the remainder of the land (hereinafter “the land of this case”) is occupied by Nonparty 2 after being leased from Simsan-si.

C. The land owned by the Plaintiff is adjoining to the land leased by the Plaintiff. The land leased by the Plaintiff is adjoining to the land owned by the Defendant to the south, while the land owned by the Defendant is adjoining to the east.

D. At present, the Plaintiff has access to the land owned by the Defendant using a portion of 27 square meters on board (B) connected in order to each point of the attached Form 1, 2, 3, 4, 5, and 1 among the land owned by the Defendant (hereinafter “instant road”).

[Reasons for Recognition] Unsatisfy, each entry of Gap evidence 1 to 5 (including virtual numbers), and the result of the on-site inspection of the first instance court and the party, the purport of the whole pleadings

2. Determination on the main claim

(a) The primary claim;

1) The plaintiff's assertion

At first, the land owned by the Simcheon-si was cultivated with the knowledge that it was owned by the village. On December 10, 1981, the non-party 2, who was the head of Simcheon-dong, entered into a loan agreement with the Simcheon-dong in his name, and the defendant, who was the head of Simcheon-dong, offered a bid to the Dong-dong with the Dong-dong, and the successful bidder would be subject to a change in the name of the loan agreement from the non-party 2. At the subsequent bidding, the non-party 1, who was the plaintiff's punishment, was awarded a successful bid, but the plaintiff was unable to pass to the land owned by the plaintiff on the wind that the non-party 2 refused the change in the name, and the defendant, on January 20, 1982, was obligated to implement the procedure for the transfer registration of ownership on the road of this case to the plaintiff on January 20, 198.

2) Determination

In this case, it is not sufficient to recognize that the defendant donated the passage of this case to the plaintiff only with the testimony of the non-party 3 of the witness of the first instance trial, the result of the on-site inspection of the first instance trial and the first instance trial, and the remaining evidence submitted by the plaintiff. The plaintiff's above assertion is without merit.

(b) First preliminary principal claim;

1) The plaintiff's assertion

On January 20, 1982, with the consent of the Defendant to use the road in this case, the Plaintiff opened a road by cutting and embankinging the road in this case for the passage of land owned by the Plaintiff. Since the Plaintiff occupied and used the road in this case in peace and performance for twenty years thereafter, the Defendant is obligated to implement the procedure for the registration of the creation of the road in this case on January 20, 2002 for the passage in this case.

2) Determination

The provisions of Article 245 of the Civil Act shall apply mutatis mutandis only to cases where servitude is continued and expressed pursuant to Article 294 of the Civil Act. Thus, the acquisition of prescription can be recognized only where the owner of the dominant land establishes a road on the dominant estate and uses the dominant estate on the dominant estate and continues to use it for the period prescribed in Article 245 of the Civil Act (see Supreme Court Decisions 95Da1088, 1095, Jun. 13, 1995; 2001Da8493, Apr. 13, 2001; 2009Da74939, 74946, Jan. 28, 2010, etc.).

With respect to the instant case, there is no dispute between the parties that the Plaintiff used the instant passage for access to the land owned by the Plaintiff, but it is insufficient to recognize that the Plaintiff opened the instant passage by itself on the sole basis of the evidence Nos. 13 (including paper numbers) and 14, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part is without merit without any need to further examine.

C. Of the 2 preliminary main claim, the claim for confirmation of the right to passage over the surrounding land for the land owned by the plaintiff

1) The plaintiff's assertion

The plaintiff cultivated trees and crops from the land owned by the plaintiff of this case, and since the defendant does not obstruct the passage of the plaintiff of this case only through the road of this case from the public road to the above land, he sought confirmation that the plaintiff has the right to passage over surrounding land. In addition, the defendant is obliged not to install all obstacles that obstruct the plaintiff's passage or interfere with the passage of the road of this case.

2) Judgment on the claim for confirmation of the right of passage over surrounding land

A) Occurrence of traffic rights over the surrounding land

(1) If there is no passage between a certain piece of land and a public road to a public road for the use of the surrounding land, the owner of the land can pass over the surrounding land if he is unable to enter the public road or requires excessive expenses without passing over the surrounding land (main sentence of Article 219(1) of the Civil Act). If the land owned by the defendant for the right of passage over the surrounding land is not adjacent to the land owned by the plaintiff, as in the instant case, even if the land owned by the plaintiff is not adjacent to the land owned by the plaintiff of this case, the right of passage over the surrounding land can be recognized, and if the land required for passage is to pass through one or more pieces of land to a public road because it is not adjacent to the public road, it is necessary to separately obtain the right of passage over the surrounding land from the owner of the surrounding land, and if the land is passing through the public road, it is not necessary to obtain the right of passage over the surrounding land. Thus, the owner of the blind land can only seek the right of passage over

As to the instant case, public health zone and the land owned by the Plaintiff is adjacent to the land leased by the Plaintiff. The land leased by the Plaintiff is adjacent to the land owned by the Defendant, and the land owned by the Defendant is adjacent to the road owned by the Defendant. As seen earlier, if there is no passage between the land owned by the Plaintiff and the land leased by the Plaintiff and the land leased by the Plaintiff, the Plaintiff shall be granted the right to passage over surrounding land under Article 219 of the Civil Act.

(2) The establishment of the right to passage over the surrounding land of this case

Since there is no dispute between the parties that there is no passage between the land owned by the plaintiff and the public service of this case, according to the results of examination of the plaintiff's loan land and the public service of this case as to whether there is another passage other than the part concerning the land claimed by the plaintiff, Eul evidence Nos. 1, Eul evidence Nos. 1, the first instance court and the party's on-site inspection, it can be recognized that the actual passage started from the south of the land owned by the defendant of this case is connected to the loan land of this case to the non-party Nos. 5 (including a provisional number) and the fact that the plaintiff used the above passage. Meanwhile, in full view of the following facts, it is recognized that the small trees between the land owned by the plaintiff of this case and the non-party No. 2 were planted as fences, and the plaintiff cannot have access to the above passage, and since the plaintiff cannot have access to the land of this case, it can be seen that the plaintiff's access to the land of this case was not owned by the defendant of this case.

(3) Judgment on the defendant's assertion

(A) First, the Defendant asserts that since all of the Plaintiff’s loan land and the Plaintiff’s loan land are part of the Plaintiff’s loan land and the Plaintiff’s loan land, as long as the passage of Nonparty 2 is practically connected to the Plaintiff’s loan land, the right to passage over surrounding land cannot be recognized. However, as seen earlier, the Plaintiff and Nonparty 2 are currently leased with some of the Plaintiff and Nonparty 2, and therefore, the Plaintiff cannot access the above actual passage through the loan land. Accordingly, the Defendant’s assertion on this part is without merit.

(B) Next, the Defendant asserts that the fence consisting of small trees between the Plaintiff’s land and the loan land of Nonparty 2 was additionally installed in order to obtain favorable judgment in the instant lawsuit prior to the date of the party’s on-site inspection, and that the Plaintiff’s assertion of right to passage over surrounding land after intentionally installing a fence cannot be permitted under the good faith principle. However, it is insufficient to recognize that the Plaintiff intentionally installed the said fence on the ground of the following: (a) the Plaintiff’s assertion of right to passage over the surrounding land after intentionally making it difficult to pass through the fence; (b) the outcome of verification on-site inspection of evidence Nos. 7 and 5 (including the land number); and (c) the result of verification on-site inspection of the party’s own land is insufficient

B) Scope of recognition of traffic rights over surrounding land

The right of passage over surrounding land stipulated in Article 219 of the Civil Act is particularly recognized at the risk of causing 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 purpose, between the public interest and the public interest. Thus, in determining the width or location of the passage route, the method which does not cause the least damage to the owner of the land under way should be considered. However, at least the scope necessary for the owner of the land under the right of passage should be permitted. The degree of necessity should be determined based on the geographical features, locational features, and utilization relationship of the land under the ordinary social norms in a specific case (see Supreme Court Decision 96Da10171 delivered on May 14, 1996, etc.).

Comprehensively taking account of the overall purport of the pleadings as to the instant case’s results of the on-site inspection by the public health room, the first instance court, and the party, the Plaintiff has access to the road of this case, and its size is limited to 27 square meters, and the road of this case is the shortest distance from the Plaintiff’s land owned by the Plaintiff through the Plaintiff’s loan to the meritorious service, and the Defendant cultivated a field from the Defendant’s land adjacent to the instant road of this case, but it cannot be seen that the passage of this case’s road of this case cannot be seen as a serious obstacle to the Spodo farmer due to the Plaintiff’s passage, it is reasonable to determine the right to passage over the surrounding land of the road of this case.

3) Determination on the claim for the prohibition of interference

As determined earlier by the Plaintiff, the Defendant is obligated not to install any obstacles that obstruct the Plaintiff’s passage or interfered with the passage, as to the passage of the instant road.

3. Judgment on the counterclaim

The defendant's counterclaim is without merit, since the plaintiff passed the road of this case without permission and interferes with the defendant's ownership. Thus, the defendant's counterclaim is without merit, since the plaintiff sought a prohibition of passage as a removal of interference based on ownership, but the plaintiff has the right to passage over the surrounding land.

4. Conclusion

Therefore, it is confirmed that the plaintiff has the right of passage over surrounding land, and the defendant has the obligation not to install any obstacles that obstruct or obstruct the passage of the plaintiff with respect to the passage of this case. Thus, the plaintiff's main claim is accepted as reasonable, and the defendant's counterclaim is dismissed as there is no ground. Since the judgment of the court of first instance is unfair in conclusion, the plaintiff's claim against the main claim is accepted, and the defendant's counterclaim is dismissed, and it is so decided as per Disposition.

[Attachment] Drawings: omitted

Judges Kim Tae-tae (Presiding Judge)

(1) Although the Plaintiff did not explicitly correct the purport of the claim as above, it is reasonable to deem that the Plaintiff added the selective claim as above in light of the cause of the claim.