Plaintiff 1 and one other (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Defendant

February 1, 2007

Suwon District Court Decision 2004Ra826 delivered on October 27, 2005

1. The judgment of the first instance is revoked, and the plaintiffs' lawsuit of this case is dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

A. The primary purport of the claim

(1) The Defendant confirms that the Plaintiffs have the right of passage as to the portion 2, 3, 4, 5, 6, 7, and 2 of the same map among the 2,297 square meters of the same Ri (number 2 omitted) and the part 2,297 square meters of the same map among the 2,297 square meters of the same Ri (number 2 omitted), which are attached in sequence to the 1,24 square meters of the Mari-ri (number 1 omitted), which are attached to the 624 square meters of the Mari-ri (number 1 omitted), which are attached to the 624 square meters of the Mari-ri-ri, Gwangju-si, Gwangju-si.

(2) The defendant shall not install obstacles on the ground of the above "bbb", "div.", and "v." that obstruct the passage of the plaintiffs, or perform any other act that obstructs the passage of the plaintiffs.

B. Preliminary purport of claim

(1) The Defendant confirmed that the Plaintiffs had the right of passage on the ship, which connects each point of 3, 4, 5, 6, and 3 square meters in the attached Form No. 2,297 square meters prior to the retirement village in Gwangju-si, Gwangju, with respect to the area of 132 square meters in the ship, which is located in order.

(2) The defendant shall not install any obstacle on the ground specified in paragraph (1) that obstructs the passage of the plaintiffs, or perform any other act that obstructs the passage of the plaintiffs.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's main and conjunctive claims are dismissed.

1. Basic facts

A. The co-defendant 2 in the first instance trial owned the land of 1924 square meters (number 1 omitted) and 624 square meters (number 4 omitted) and the land of 1924 square meters (number 1 omitted in the register of the register of the register of the register of the register of the company; hereinafter, the same shall apply) in the same Ri (number 4 omitted) in the city of Gwangju, the non-party 2 owned the land of 2297 square meters prior to the same Ri (number 2 omitted), and the non-party 5 owned the land of 1137 square meters in the forest of 1137 square meters (number 5 omitted) in the same Ri (number 5 omitted).

B. Nonparty 2 agreed, around 196, to sell the instant land to Nonparty 1 on the following grounds: (a) Nonparty 5, the owner of the public-private partnership (number 5 omitted) land immediately adjacent to the instant land around 1996; and (b) Nonparty 1, the purchaser of the public-private partnership (number 1 omitted); and (c) Nonparty 2, the land owner of the public-private partnership (number 1 omitted); and (d) the land of this case, which was connected in sequence to each of the items of “bbb” portion of 33 square meters in the public-private partnership (number 2 omitted); and (e) the land of this case, which was connected each point of 2,3,4,5,6,7, and 132 square meters in the public-private partnership (number 2 omitted); and (b) the land of this case, the land of this case, which was subject to the agreement to provide the land of this case for the passage of 5 square meters in the public-private partnership (hereinafter “instant land”).

C. Meanwhile, according to the above agreement on May 196, Nonparty 1: (a) obtained a written consent to permanent use of 316 square meters among them from Nonparty 2, who is the owner of the land in the Government-ri (number 2 omitted); and (b) obtained a written consent to permanent use of 33 square meters among them from Nonparty 4, who is the owner of the land in the Government-ri (number 1 omitted).

D. After all, Nonparty 1 applied for the permission on the diversion of farmland to make the portion of the road of this case into a road by attaching the written consent for the use of each land in the above paragraph (c) above, and obtained the permission on the diversion of farmland from the head of Gwangju Gun on June 12, 1996, but did not construct a road on the road of this case, Nonparty 1 sold the land to Nonparty 6 and registered the transfer of ownership in the name of Nonparty 6 on December 17, 199.

E. Meanwhile, on March 15, 2001, the Defendant entered into a contract with Nonparty 2 to purchase at KRW 194,460,00 of the purchase price and paid the purchase price for at least KRW 1981/2297 of the land in the public-private partnership (number 2 omitted), the public-private partnership (number 1 omitted), the land in the public-private partnership (number 6 omitted), and the land in the public-private partnership in Gwangju City (number 6 omitted), and the land in the public-private partnership in the public-private partnership (number 6 omitted), and completed the registration of ownership transfer on August 9, 2001 (number 2 omitted), and completed the registration of ownership transfer on the remaining portion of the land in the public-private partnership (number 2 omitted), and completed the registration of ownership transfer on May 3, 2005 (number 1 omitted), and on July 22, 2001, the registration of ownership transfer was made on the land in the public-private partnership 3196/294.26.4

F. Meanwhile, on December 6, 2002, the Plaintiffs concluded a contract to purchase the instant land from Nonparty 6 in the name of KRW 150,000 (However, Plaintiff 1 entered into a sales contract in the name of Nonparty 7, his father), but among the bonds not registered for the transfer of ownership under the names of the Plaintiffs or Plaintiff 1, Plaintiff 1’s punishment Nonparty 8 and Plaintiff 2’s wife Nonparty 9 completed the registration for the transfer of ownership on September 30, 2004 with respect to the instant land on the grounds of sale on March 23, 2003.

[Basis] Evidence No. 1-6, Evidence No. 1-2, evidence No. 3-1-2, evidence No. 5-1-4, evidence No. 5-2, evidence No. 6-1-2, evidence No. 9, evidence No. 10-1-4, evidence No. 11, 14, evidence No. 15-1 through 3, evidence No. 11, 19, and 20 respectively, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiffs' assertion

① In order to secure the passage way from the instant land to the public road, Nonparty 1, around the other party 2, obtained the consent to permanently use the instant land in order to secure the passage way from Nonparty 2’s land from the instant land. The Plaintiffs purchased the instant land in sequence through Nonparty 1 and 6, and the Plaintiffs acquired the said permanent passage right by succession. The Defendant purchased the said land from Nonparty 2 with the recognition of the burden of traffic right as above on the land in the public road (number 2 omitted) and the public road (number 1 omitted) and the public road (number 1 omitted). The Plaintiffs sought from the Defendant the confirmation and prohibition of interference with the passage way of the instant land pursuant to the above agreement. ② The Plaintiffs did not have access way from the instant land owned by the Plaintiffs, which is the first time, to the public road to the public road from the public road to the public road, and thus, the Plaintiffs confirmed that the passage route of the Defendant’s surrounding land owned by the Plaintiffs is in sequence 219 of the Civil Act, in order to the Defendant.

B. Determination

On the other hand, the plaintiffs' primary claim is that the plaintiffs acquired the right of passage to the road of this case owned by the non-party 1 and the non-party 6, the former owner of which are the non-party 2 and the defendant, while purchasing the land of this case from the non-party 6, and the plaintiff succeeded to the right of passage to the road of this case. The plaintiff's primary claim is based on the premise that the plaintiff is the owner of the land of this case. The plaintiff's conjunctive claimant's right of passage to the surrounding land stipulated in Article 219 of the Civil Code, if there is no passage necessary for the use of the land between the land and the contribution, the right

However, as seen above, it is recognized that the plaintiffs entered into a sales contract on the land of this case with the non-party 6, and there is no ownership transfer registration under the plaintiffs' name, and the land of this case is recognized only to transfer ownership from the non-party 6, the former owner of this case to the non-party 9 and 8, and it cannot be deemed that the land of this case is owned by the plaintiffs. In addition, the plaintiffs claim that they are merely the title trust with the non-party 9 and 8 as the actual owner of the land of this case. However, in the title trust relationship, although the external ownership of the land of this case exists only for the trustee, the plaintiffs cannot claim ownership against the defendant. Accordingly, the main claim and the conjunctive claim portion of this case, which is premised on the ownership of the land of this case, are presumed to exist in the title trust relationship, and therefore there is no benefit to seek confirmation of the right of passage

3. Conclusion

Therefore, the plaintiffs' lawsuit of this case is inappropriate as there is no interest in confirmation, and thus, it shall be dismissed. Since the judgment of the court of first instance is unfair as it has different conclusions, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

[Attachment Form Omission]

Judges Lee Jae-chul (Presiding Judge) (Presiding Justice)