(a) Scope of right of passage over surrounding land under Article 219(1) of the Civil Act;

(b) The case holding that a mistake concerning the current status and boundary of land is an error concerning the important part of a juristic act;

A. The right to passage over surrounding land under Article 219(1) of the Civil Act is permitted to the extent that the damage is the largest to the surrounding land owner, but at least the scope necessary for the person who has the right to passage to enter in order to lead a daily life in his own land and a house above the land and to transport the goods shall be permitted, and the extent necessary shall be determined in consideration of all the circumstances such as the geographical condition and use relation of the land owned by the person who has

B. If the person having the right of passage over the surrounding land has mistakenly agreed to install the fenced by setting the width of the passage on the basis of the fence with the knowledge that the fenced by the person having the right of passage over the surrounding land is consistent with the boundary of the site, such agreement is due to an error in the boundary of the land and such an error is deemed an error in the important part of the juristic act

A. Article 219(1) of the Civil Act; Article 109 of the Civil Act

B. Supreme Court Decision 67Da2160 Decided March 26, 1968, Supreme Court Decision 74Da54 Decided April 23, 1974

[Defendant-Appellant] Hong-hwan et al., Counsel for defendant-appellant-appellant

Defendant Kim-chul, Counsel for the defendant-appellant

Daegu District Court Decision 87Na64 delivered on March 4, 1988

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal by the Plaintiff’s attorney.

1. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for removal of the wall in this case on the ground that, although recognizing the Plaintiff’s right to passage on the land in this case, the width of the part indicated in the accompanying drawing(a) portion of the judgment below, which is currently being used as a passage, is 113 centimeters in the alley-gu, 154 centimeters in the alley-gu, and 259 centimeters in the alley-gu in the alley-gu in the alley-gu in the form of 259 centimeters in the form of a passage, and it is recognized that there is little inconvenience in daily life, but the length to the main body of the main body of the gate-gu in the form of a road is relatively shorter than 10 meters in the form of a 35 cent in the form of a dunes-gu in the form of alley-gu in the form of a road

However, the right of passage over surrounding land under Article 219 (1) of the Civil Code shall be permitted to the extent that the damage is the largest to the surrounding land owner, but at least the scope necessary for the person who has the right of passage to enter the land and carry the things in order to lead a daily life on the land owned by him/her and on the land owned by him/her shall be permitted, and the extent necessary shall be determined in consideration of all the circumstances such as the geographical situation and use relation

In this case, upon examining the statements 1 to 4, 5 Evidence 1 to 6, 1 to 7 of the same No. 7 and the result of the on-site inspection by the court below, which were no dispute over the establishment of this case, they were owned by Nonparty 1 at ( Address 1 omitted) 220.8, which was originally owned by Nonparty 1, around 1975, approximately 4.6, ( Address 1 omitted) 35.2, ( Address 2 omitted), approximately 30, 30.7, 40, 68.7, 68.2, 7, 7, 7, 7, 12, 2, 2, 2, 2, 3, 5, 2, 2, 3, 5, 7, 2, 3, 5, 7, 2, 5, 2, 3, 5, 7, 2, 5, 2, 2, 3, 5, 7.

In light of the circumstances that the land of this case is the land whose land category is changed to the road by dividing the land into a passage for the land owned by the plaintiff and the defendant, and the overall circumstances such as the size, use status, etc. of each site and ground building owned by the plaintiff and the defendant, the width of the passage entrance to the extent that the present 113 centimeters cannot be seen as being too narrow for the plaintiff-owned land to enter and transport goods in order to lead a daily life on the land and building owned by the plaintiff ( even though the width of the passage is relatively wide, if the width of the passage entrance is narrow, the use of the passage shall not be hindered as a whole, and thus, the width of the passage entrance should be permitted at least 150 centimeters wide, which is the intermediate width of the passage).

Ultimately, the court below's rejection of the plaintiff's claim on the grounds that the width of the passage on the inside of the passage is wider than the entrance, and the length of the passage is not entirely impossible to pass through a public road, is erroneous in the misapprehension of legal principles as to the scope of the right to passage over surrounding land. Therefore, the argument about

2. In addition, according to the reasoning of the lower judgment, the lower court determined that the Defendant’s construction of the wall on the instant land (hereinafter the Defendant’s wall) under the agreement with the Plaintiff was contrary to the foregoing agreement to seek removal of the Defendant’s wall, and thus, it was unreasonable or groundless. However, even though Nonparty 2’s wall on the site ( Address 1 omitted) owned by the Plaintiff at the time (hereinafter Nonparty 2’s wall) adjacent to the instant land was installed at one point point and 30% in the said site ( Address 1 omitted), the Plaintiff knew that the aforementioned Nonparty 2’s wall was installed within the boundary of the site and knew that it was installed within the boundary of the site, the width of the passage between the two walls would be maintained at least 2 meters, even if the Defendant constructed the Defendant’s wall at the present location, and thereafter, it did not admit that there was a lack of evidence to revoke the said agreement as to Nonparty 2’s removal of the wall in accordance with the boundary of the said site. Accordingly, the lower court’s testimony was rejected.

However, according to the testimony by the non-party 4 of the first instance trial witness employed by the court below, the defendant sold the above land to the non-party 2 at the wall inside the above ( Address 1 omitted) site. Since the defendant sold the above land to the non-party 2 at the time, it is clear that the above non-party 2's wall knew that it is consistent with the above ( Address 1 omitted) boundary.

Therefore, although the testimony of the non-party 3 of the first instance court that both the plaintiff and the defendant met the fact that the non-party 2's wall was installed more than the site boundary, he knows that it is consistent with the site boundary, the width of the passage is determined based on this, and the defendant's testimony that the non-party 3 agreed to the installation of the defendant's wall was credibility, the court below determined as above. In this regard, the judgment of the value of evidence was reversed, which affected the conclusion

As seen above, if the plaintiff and the defendant knew that the fence of the non-party 2-owned position adjacent to the land in this case were to coincide with the site borderline and agreed to install the defendant's fence by designating the passage width on the basis of the wall in this case, such agreement is due to errors in the current status boundary of the land, and such errors may be deemed to be an error in the important part of the juristic act (see, e.g., Supreme Court Decision 67Da2160, Mar. 26, 1968; 74Da54, Apr. 23, 1974). It is reasonable to discuss this point.

3. Ultimately, the judgment of the court below on the ground of reversal under Article 12(2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)