2020Da280326 Confirmation of traffic right over surrounding land

J. M. M. T. T. M. M. C.

Law Office of Pohang (Law Office)

Attorney Lee Dong-soo

Daegu District Court Decision 2019Na325542 Decided October 14, 2020

March 11, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

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, may, in a case where 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, constitute a 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, “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 nature where many, unspecified persons, or vehicles and horses are allowed to freely pass through without any specific person (see, e.g., Supreme Court Decision 2017Do1056, Apr. 23, 2019), and is also a public road. The ownership relation of the relevant site, traffic right relation, or traffic congestion is not set aside under the Criminal Act (see, e.g., Supreme Court Decision 8Do18, Apr. 25, 198); even if the owner of the site is the owner of the building site, an act of interference with traffic of the general public by taking advantage of any obstacle on the road, etc., constitutes an act of interference with traffic of the general public.

C. With respect to the right to passage over surrounding land, Article 219 of the Civil Act provides, “If a road has no passage necessary for the use of the surrounding land to a public road without passing over or passing over the surrounding land, the owner of the land can pass over the surrounding land if it is impossible to reach the public road without passing over or passing over the surrounding land, or the cost to reach the public road is excessive, and if necessary, he may pass over the surrounding land to the public road.” In other words, the right to passage over surrounding land is recognized as one in neighboring land in order to connect the blind land without passing over the road to a public road.” In other words, the right to passage over the surrounding land is de facto recognized as one in neighboring land to connect the blind land without passing over the road to a public road. The construction process or whether it is a road regularly constructed pursuant to the relevant laws and regulations does not need to recognize the right to passage over surrounding land as provided for in Article 219 of the Civil Act to the owner of the land already connected to the public road.

2. Determination as to the instant case

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

(1) The Plaintiff is the owner of a historical site of 793 meters in Kimcheon-si ( Address 1 omitted), and is operating the inspection “○○○○○○○○” in a place. On January 23, 2014, the Defendant purchased the forest land of 59,504 square meters in a voluntary auction procedure and completed the registration of transfer of ownership.

(2) In the instant forest land, there are roads listed in Paragraph (1) of the order of the first instance judgment (hereinafter referred to as the “road of this case”), which is the only passage to ○○○○○○, and the inspection is taken and used by nearby residents, as well as by the believers and visitors.

(3) Since 1985, the road of this case was naturally formed as a result of the Saemaul Project in 1985, and Kimcheon-si, a local government, recognized it as a "public contribution for the convenience of transportation and production and distribution activities of residents in rural areas" under Article 2 (1) of the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages, and managed it as an agricultural and fishing village for at least 30 years.

(4) The Defendant filed a lawsuit claiming the package removal and delivery of the instant road against Kimcheon-si, a local government, with the intention to restrict the use of ownership by many unspecified persons entering into and departing from the instant road, by asserting that the use of ownership was obstructed by the passage of the instant road.

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 it constitutes a contribution offered to the general public while managing it as an agricultural and fishing village road under the Act on the Maintenance and Improvement of Road in Agricultural and Fishing Villages for at least 30 years. As long as the instant road itself is a contribution, the Plaintiff’s free access to the instant road is guaranteed to the extent necessary for daily life, barring special circumstances, such as infringement of others’ rights, and thus, it is unnecessary to recognize the right to passage over surrounding land.

C. Therefore, although it is inappropriate for the lower court to have determined that the Plaintiff recognized the right to passage over surrounding land regarding the instant road, it is justifiable to have maintained the first instance judgment which accepted the Plaintiff’s claim for confirmation of the right to passage and prohibition against obstruction of passage by deeming that the Plaintiff had the right to passage freely. In so determining, the lower court erred by misapprehending the legal doctrine on the right to passage over surrounding land, but did not affect the conclusion of the judgment.

3. Conclusion

Therefore, the Defendant’s appeal is dismissed as it is without merit. The 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.

Supreme Court Decision 200

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge