[1] The case where it is permissible for a person who intends to use land offered for public passage to seek the exclusion of the passage obstruction or the prohibition of the obstruction

[2] The elements to recognize the right to passage over the surrounding land as to the use of the land on which a separate access road exists

[1] Article 750 of the Civil Act / [2] Article 219 of the Civil Act

[1] Supreme Court Decision 95Da2203 Decided November 7, 1995 (Gong1995Ha, 3900), Supreme Court Decision 2010Da63720 Decided October 13, 201 (Gong2011Ha, 2330) / [2] Supreme Court Decision 92Da36311 Decided December 22, 1992 (Gong193Sang, 582), Supreme Court Decision 2002Da53469 Decided August 19, 2003 (Gong203Ha, 1865)

Thai, Inc.

The debtor

Gwangju High Court Order 2011Ra139 dated August 29, 2012

The order of the court below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below recognized the fact that the debtor interferes with the passage of vehicles by planting pine trees on the land in the dispute in this case, and the fact that the above land constitutes a road provided for the passage of the general public, and held that the creditor has the right to pass over the above land, which is a road offered for the passage of the general public, and held that the debtor has the right to seek the prohibition of the exclusion of interference

However, a person intending to pass through a certain land solely on the ground that it is offered to the general public does not necessarily have a judicial right to seek the exclusion of disturbance, including the removal of obstacles, as a matter of course, to a person who obstructs the passage of the land: Provided, That where the obstruction of passage takes place only for a specific person and thereby interferes with daily life, and where the obstruction of passage constitutes a tort under the Civil Act as an unlawful infringement against a specific person’s freedom of passage, and it reaches the degree of assessment that such obstruction constitutes a tort under the Civil Act, such prohibition may be allowed (see, e.g., Supreme Court Decisions 95Da2203, Nov. 7, 1995; 201Da63720, Oct. 13, 2011).

In light of the above legal principles, to recognize the creditor's right to seek the exclusion of, or the prohibition of, the interference with the passage of the land in question as recognized by the court below, the mere fact that the land is offered to the public for the passage of the general public is insufficient, and special circumstances should be acknowledged that the creditor violated the creditor's freedom of passage illegally by allowing only the creditor to interfere with the passage of the road and interfere with daily life.

Nevertheless, the court below erred by misapprehending the legal principles on the right to use the road or the freedom of passage, and failing to exhaust all necessary deliberations, which affected the conclusion of the decision, although the land in this case constitutes a road provided for the passage of the general public.

2. The lower court also determined that, even if the instant dispute does not constitute a road provided for the general public’s passage, the Plaintiff has the right to pass the instant dispute land to enter and depart from the instant factory site based on Article 219 of the Civil Act, even though the instant dispute has a separate access road other than the instant dispute land as a passage connecting the instant factory site and the public road, but the access road is temporarily installed to move the landscape trees planted in the instant factory site before about three years, and it is difficult for the Plaintiff to move because the ground has not been maintained.

In addition to a case where a certain piece of land cannot be controlled by a public road surrounded by another person’s land, and even if a separate access road exists, if the access road is unfit for the use of the land and thus it does not actually function as a passage or it requires excessive expenses to open a passage, the right to passage over surrounding land pursuant to Article 219 of the Civil Act may be recognized (see Supreme Court Decisions 92Da36311, Dec. 22, 1992; 2002Da53469, Aug. 19, 2003).

Therefore, in order to recognize a right to passage over surrounding land in addition to the land in the dispute of this case where a separate access road exists in order to use the site of this case, the access road should be deemed to fall under the time when the access road does not function as a passage, or excessive expenses are required for the construction of a passage. According to the records, the width of the access road can be seen as the degree of passage of vehicles and construction machinery, and the surface is maintained to the extent that the passage of vehicles and construction machinery is possible. Thus, it cannot be readily concluded that the above separate access road does not function as a passage or excessive expenses are required for the construction of a passage. Thus, the court below erred by misapprehending the legal principles on the scope of recognition of the right to passage over surrounding land and by failing to exhaust all deliberations, which affected the decision

3. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)