[1] In a case where the right of passage over surrounding land is recognized, the standard for determining the width, location, method of passage, etc. of passage along the surrounding land

[2] In a case where a specific passage seeking confirmation of the right to passage over surrounding land does not meet the requirements under Article 219 of the Civil Act, whether a claim shall be dismissed (affirmative in principle) / Where part of a specific passage seeking confirmation of the right to passage over surrounding land satisfies the requirements under Article 219 of the Civil Act, or where it is possible to recognize the right to passage over surrounding land by limiting the time or frequency of a specific passage (affirmative in principle)

[1] The right of passage over surrounding land is particularly recognized at the risk of causing damage to the owner of the land under way, in a case where there is no passage necessary for the use of the land between the public road and the public road, so that the width, location, method of passage, etc. shall be the lowest damage to the owner of the land under way. In a specific case, it shall be determined in accordance with social norms by taking into account the topography, location, and use of the land between both parties, the surrounding geographical and locational shape, the surrounding geographical state, the interest of the user of the surrounding land, and other relevant circumstances. Furthermore, even if the right of passage over surrounding land is recognized, it shall not be deemed that the passage should be opened regularly to allow the use of the passage without restriction, or that the right of the owner of the land under way should not be excluded. Thus, it may be recognized by limiting the timing, frequency, method, etc.

[2] In order to obtain confirmation of the right of passage over surrounding land, the place and method of passage must be specified in the purport of the claim, and the requirement as stipulated in Article 219 of the Civil Act must be asserted and proved. Therefore, in a case where the specific passage part seeking confirmation by asserting that the right of passage over surrounding land has been granted fails to meet the requirements as stipulated in Article 219 of the Civil Act, the claim shall be dismissed in principle even if the right of passage over surrounding land is recognized. However, in a case where it is possible to recognize the right of passage over surrounding land by limiting the time and frequency of a specific passage part of the specific passage part seeking confirmation of the right of passage satisfies the requirements as stipulated in Article 219 of the Civil Act or by limiting the number of times to a certain passage part, it is reasonable to accept the claim within such limited scope, unless it is evident that there is no intention to seek confirmation of the right of passage

[1] Article 219 of the Civil Code / [2] Article 219 of the Civil Code

[1] Supreme Court Decision 2008Da75300, 75317, 75324 decided June 11, 2009 (Gong2009Ha, 1113) / [2] Supreme Court Decision 2005Da70144 decided June 2, 2006 (Gong2009Ha, 1249)

Plaintiff (Appointed Party)

Defendant

Changwon District Court Decision 2015Na10626 decided August 24, 2016

The part of the lower judgment against the Plaintiff (Appointed Party) is reversed, and that part of the case is remanded to the Changwon District Court. The remaining appeals are dismissed. Of the costs of appeal, the remainder between the appointed parties except the Plaintiff (Appointed Party) and the Defendant are assessed against the said appointed parties.

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Appointed Party) (hereinafter “Plaintiff”)

A. According to the reasoning of the judgment below, based on the adopted evidence, the court below acknowledged the following facts: ① the Plaintiff is the co-ownership right holder of the forest ( Address 1 omitted); (2) the forest ( Address 2 omitted) is subject to registration of preservation of ownership in the Plaintiff’s lighting Nonparty 1; (2) the Defendant is the owner of the forest ( Address 3 omitted) adjacent to the 1 and 2 forest (hereinafter referred to as “third forest”); (3) the Plaintiff’s parent grave in the 1 forest; (2) the Plaintiff’s parents grave in the 2 forest in the 2 forest; (3) the Plaintiff’s 1 and the 2 forest are installed three large-scale graves (hereinafter referred to as “each grave in each of the above graves”; and (4) the lower court rejected the Plaintiff’s confirmation of the removal of each of the instant forests and land adjacent to the 1 and 2 forest in each of the instant forests and the Plaintiff’s surrounding land (hereinafter referred to as “the Plaintiff’s removal of each of the instant forests and the Plaintiff’s removal of each of each of the instant forests and land adjacent land.

(1) The Plaintiff’s proof of the fact that the only land connected to the first and second forests is the land to be confirmed in the original judgment is insufficient. While the second forests and fields are connected with the public service, it appears that it would be possible to enter the second forests and fields through the public service; even without going through the land to be confirmed, it is determined that the Plaintiff could easily enter the second forests and fields with the public service using other land in the vicinity of the first and second forests and that it would be possible to enter the second forests and fields with the public service; and, after entering the second forests and fields through the public service, it cannot be deemed that the Plaintiff’s construction of a path through which the Plaintiff’s parent graves in the first forests and fields could go through the public service without passing through the public service without passing through the public service, and it is difficult to deem that the method of passing through the land to reach the first forests and fields by passing through the public service without passing through the public service, it does not constitute an excessive cost to pass through the public service without passing through the public service or to pass through the public service.

(2) Even if the land subject to the verification is a blind access only through the land subject to the verification, it appears that many unspecified persons would use the land subject to the verification if the land subject to the verification is opened by the passage for the first and second forests. In such a case, it would be difficult for the Plaintiff to cultivate the beginning, etc. under the Organic Agriculture Act, and allow the Defendant to recognize the number of the Defendant running the farm. The Plaintiff needs to pass through each of the instant graves in order to bring the land subject to the verification several times a year. On the other hand, when the Plaintiff recognizes the right to pass through the land subject to the verification, the Defendant would have suffered a significant limitation of private property rights, such as removing and re-establishing the steel net and the decline of the third boundary. In light of the Plaintiff’s necessity and the degree of damages suffered by the Defendant, the owner of the land subject to the verification, the Defendant’s right to pass through comparison and balancing the damages incurred to the Defendant, and thus, it cannot be deemed that the Defendant’s choice of the method of entering the first and second forest land.

B. However, we cannot agree with the above determination by the court below for the following reasons.

(1) The court shall carefully and faithfully examine the litigation case so that the propriety of the judgment can be ensured, which is the premise for the confirmation of correct facts. The confirmation of facts belongs to the exclusive jurisdiction of the fact-finding court. The Civil Procedure Act provides that "the presiding judge may ask the parties concerned about the factual or legal matters, and urge them to testify in order to clarify the litigation relationship," and Article 136 (1) of the Civil Procedure Act provides that "the court shall give the parties concerned an opportunity to state their opinions on the legal matters which are deemed clear to be the parties concerned," and Paragraph (4) of the same Article provides that "the fact-finding court shall give the parties concerned an opportunity to state their opinions on the legal matters which are clearly deemed clear to be the parties concerned, due to the assertion of any legal effect or the misunderstanding thereof, or from the legal point of view of the argument, shall actively exercise its authority to explain and prove the parties or to state their opinions, and shall clarify the litigation relation by making them present at pleading (see, e.g., Supreme Court Decision 2005Da31659, Mar. 29, 2019, 2007

According to the reasoning of the lower judgment and the record, the part of the land to be confirmed, namely, the part of the ship connecting each point of the items indicated in the Appendix 7 through 16, indicated in the annexed drawing of the lower judgment (hereinafter “part of passage of this case”), is located outside the boundaries of forests and fields owned by the Defendant even in accordance with the drawing, and each wire-conditioning network and down door installed in the doorB and the doorC, respectively, may be located in the forest and fields No. 2 and No. 1. Accordingly, the possibility that the forest and field to which the part of passage of this case belongs is not owned by the Defendant cannot be ruled out. Moreover, there is no room to view that the Plaintiff has the right to seek the removal of interference as the owner of the land or the co-ownership of the co-ownership right in the part of the passage of this case.

On the other hand, the court below should have clearly clarified the facts through the appropriate exercise of the right to ask for a statement of opinion on the legal matters that are obvious to the plaintiff due to negligence or misunderstanding, etc.

(2) (A) Meanwhile, in a case where there is no passage necessary for the use of the surrounding land between the public road and the public road, the traffic road width, location, method of passage, etc. should be deemed to be the largest less damage to the owner of the destination. This should be determined in accordance with social norms by taking into account the geographical and locational features, location, and use of both land, surrounding geographical features and location, surrounding geographical features, interests of the users of adjacent land, and other relevant circumstances in a specific case (see Supreme Court Decision 2008Da75300, Jun. 11, 2009). Even if the right of passage is recognized, it does not require that the passage should be opened regularly to be used without restriction or that the right of the owner of the destination should be excluded. Thus, in light of the use and use of both land, the timing, frequency, method of passage, etc. to the extent suitable for the use of the land.

In addition, in order to obtain confirmation of the right of passage over surrounding land, the place and method of passage must be specified in the purport of the claim, and the requirement as stipulated in Article 219 of the Civil Act should be asserted and proved. Therefore, in a case where the specific passage part seeking confirmation by asserting that there is the right of passage over surrounding land does not meet the requirements stipulated in Article 219 of the Civil Act, the claim shall be dismissed in principle even if the right of passage over surrounding land is recognized. However, in a case where it is possible to recognize the right of passage over surrounding land by limiting the time and frequency of a specific passage part of the specific passage part seeking confirmation of the right of passage satisfies the requirements stipulated in Article 219 of the Civil Act or by limiting the number of times to a certain passage part, it is reasonable to accept the claim within the limited scope, unless it is evident that there is no intention to seek confirmation of the right of passage only to the limited extent (see Supreme Court Decision 2005Da70144, Jun. 22, 2006).

(B) According to the reasoning of the lower judgment and the record, the following facts and circumstances are revealed.

1. The forest land in Type 1 is the blind land, and between the forest land in Type 1 and the forest land in Type 2, it is located in the Gyeongcheon-gun in the Gyeongnam-gun in the Gyeongnam-gun.

② Although part of the forests and fields No. 2 are adjacent to the public service, even if it is possible to enter the forests and fields No. 2 from the public service, the area of the forests and fields No. 22,215 square meters is equal to that of the forests and fields No. 2. 22,215 square meters, and it seems possible to approach considerable distance from the place adjacent to the public service to the place where the Plaintiff et al.’s substitute graves are located. It is also unclear whether there

③ Even if the Plaintiff, etc. entered the 2 forest from the public service to the 2 forest and reached the 1st grave, in order to again reach the Plaintiff’s parents’ grave located in the 1 forest and field, the above Nonparty 2 ought to pass through the forest and field owned by the said Nonparty 2. As long as the part of the passage part of the instant case from the 2 forest to the 1 forest to the 1C is not used, the said 4th forest and field ought to be used. Likewise, it is unclear whether there exists easy moving on the records.

④ Meanwhile, the Plaintiff seeks confirmation, etc. of the right to passage over surrounding land regarding the land subject to confirmation in order to carry out a sexual tomb and bees, etc. in a forest and field No. 1 and a forest and field No. 2. The Plaintiff’s use of the land subject to confirmation may easily access each of the instant graves from contributions.

(C) According to the above facts, in order for the Plaintiff to reach the 1 and 2 forest land from public service, there is room to regard that the Plaintiff is unable to enter a road in mountain or pass the land owned by a third party without going through the land to be confirmed, or that it does not have sufficient functions as an actual passage even if a certain passage exists, or that it requires excessive expenses to pass a public service. Furthermore, in light of the legal principles as seen earlier, even if the Plaintiff’s use of the land as a passage through public service for the land to be verified is difficult for the Defendant who operates the farm to pass a public service, it seems that the interest between the Plaintiff and the Defendant can be adjusted by selecting the method less damage to the Defendant, which is the most difficult for the Defendant to pass a public service. In other words, since the Plaintiff intended to pass through the public service for the confirmation of land to reach the 1 and 2 forest land in this case, the Plaintiff’s right to pass through the public service for the full-time passage of the land to be confirmed, barring any special circumstances, and thus, it is reasonable to deem that the Plaintiff’s right to pass the Plaintiff’s claim is the most possible.

C. However, the lower court rejected the Plaintiff’s claim solely on the grounds as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine regarding the right to passage over surrounding land and the principle of disposal, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

2. As to the appeal by the remaining designated parties except the plaintiff

Although the plaintiff filed an appeal against the remaining designated parties other than the plaintiff, the plaintiff did not state any objection against the petition of appeal or the appellate brief.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part of the judgment below against the Plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed, and the remaining designated parties except the Plaintiff and the Defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on

[Attachment] List of Appointeds: Omitted

Justices Kwon Soon-il (Presiding Justice)