Main Issues
[1] In a case where the right to passage over surrounding land is recognized under Article 219 of the Civil Code, matters to be considered in determining the width and location of the passage
[2] Whether the provision of Article 220 of the Civil Code as to the right of free passage applies to a specific successor of the land or the land covered by the right of free passage after a divided person or a party to a partial transfer has already established a passage based on the right of free passage (negative)
[3] In a case where a road is designated under Article 2 subparagraph 11 (b) of the former Building Act, whether a person who obtained a building permit, etc., or a passage through the road is recognized under the private law (negative)
Summary of Judgment
[1] Since the right of passage over surrounding land under Article 219 of the Civil Act is particularly recognized to be at the risk of causing damage to the owner of the right of passage for the purpose of public interest, which is the use of land without a passage necessary for its use, the width or location of the passage shall be determined by considering the method with less damage to the owner of the right of passage. However, at least the scope necessary for the owner of the right of passage to use the land should be permitted, and the degree of necessity should be determined based on the geographical features, locational features, form and use relationship of the land between the public interest and the public interest. In a specific case, the degree of necessity should be determined based on the understanding of the user of the adjoining land.
[2] Article 220 of the Civil Act on the right of free passage applies only to a specific successor of the land that is directly divided or partially transferred, and does not apply to a specific successor of the land or the land that is thus captured. This legal doctrine applies to cases where a party to a division or a partial transfer has already established a passage based on the right of free passage, and a specific succession is made after the specific succession is made.
[3] Article 2 subparagraph 11 (b) of the former Building Act (amended by Act No. 4816 of Dec. 22, 1994) does not grant a person who obtained a building permit, etc., or a person who passed through a road is designated as a "road designated by the head of a Si/Gun/Gu (limited to the head of an autonomous Gu) by building permit or declaration."
[Reference Provisions]
[1] Article 219 of the Civil Act / [2] Article 220 of the Civil Act / [3] Article 2 subparagraph 11 of the former Building Act (amended by Act No. 4816 of Dec. 22, 1994)
Reference Cases
[1] Supreme Court Decision 91Da32251 delivered on April 24, 1992 (Gong1992, 1676), Supreme Court Decision 94Da50656 delivered on February 3, 1995 (Gong1995Sang, 1155), Supreme Court Decision 96Da10171 delivered on May 14, 1996 (Gong1996Ha, 1860) / [2] Supreme Court Decision 84Da921, 922 delivered on February 8, 1985 (Gong1985, 418), Supreme Court Decision 90Da1091, 10107 delivered on August 28, 199 (Gong1990, 192197) / [2] Supreme Court Decision 90Da198197 delivered on June 19, 197 (Gong2090, 197)
Plaintiff, Appellant and Appellee
Plaintiff (Attorney Go-do et al., Counsel for plaintiff-appellant)
Defendant, Appellee and Appellant
Gold Textiles Industry Co., Ltd. (Attorney Ansan-tae et al., Counsel for the defendant-appellant)
Judgment of the lower court
Busan High Court Decision 2000Na12761 delivered on January 10, 2002
Text
All appeals are dismissed. The costs of appeal are assessed against each party.
Reasons
1. Judgment on the Plaintiff’s grounds of appeal
The right of passage over surrounding land stipulated in Article 219 of the Civil Act is particularly recognized at the risk of causing damage to the owner of the land under way for the public interest, which is the use of land without a passage necessary for its purpose, between the public interest and the public interest. Thus, in determining the width or location of the passage route, the method which does not cause the least damage to the owner of the land under way should be considered. However, at least the scope necessary for the owner of the land under the right of passage should be permitted. The degree of necessity should be determined based on the geographical features, locational features and utilization relationship of the land under ordinary social norms, neighboring geographical features, locational features and utilization relationship, neighboring geographical features and use relationship, and other various circumstances (see Supreme Court Decision 96Da10171 delivered on May 14, 1996).
After finding the facts as indicated in its reasoning, the lower court determined that the Defendant’s land owned by comprehensively taking account of the following facts: (a) the width of the passage necessary to construct the Defendant’s factory building is at least 6 meters; (b) the width of the access road is at least 4.7m to 5.2m; (c) the Nonparty was aware of the fact that the new wind metal Co., Ltd. purchased the land in order to construct the building of the ice Lease Manufacturing Factory; and accordingly, (d) the access road was up to the entry of the 11st vehicle at the entrance of the access road; (c) the Defendant also entered the Defendant factory through the access road; (d) the large truck was large in operating the textile manufacturing plant; (e) the portion of the access road is at least 110m or 434m or more of the forest land owned by the Plaintiff, which is at least 83-39m or 103-434m or more of the forest land owned by the Defendant; and (e) the part not included in the access road is difficult to that location due to the lower land.
In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the right to passage over surrounding land or in the incomplete hearing or the non-exercise of right
2. Judgment on the Defendant’s grounds of appeal
A. As to the first, fourth, and fifth points
The lower court determined that each of the instant lands was originally divided into 83,884 square meters of forest land owned by the Plaintiff and the Nonparty, and the Nonparty, on May 26, 1993, sold to new metal by specifying the location of 1,500 square meters among them. The sales section was not allowed to enter the public road unless the remainder of the forest land was passed through mountain 83, and that the new metal was necessary to obtain a new building permit for the construction of a new building for a stegregrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgr.
In light of the records, the above fact-finding and decision of the court below are just, and there is no error of law by misunderstanding of facts against the rules of evidence, or by misunderstanding of legal principles as to waiver of rights to use and benefit from the surrounding land, or by misunderstanding of legal principles as to the right to passage over surrounding land, and the defendant's appeal is different from the case, and thus, it is not used in this case.
B. On the second ground for appeal
The provision of Article 220 of the Civil Act on the right to passage over free land is not applicable to a specific successor of the land (see Supreme Court Decision 90Da12007, Jun. 11, 1991) that is applied only to a person who directly divides or partially transfers the land, or to a specific successor of the land or the right to passage over free land (see Supreme Court Decision 90Da12007, Jun. 11, 1991). This legal principle also applies to cases where a divided or partially transferred party had already installed a passage on the basis of the right to passage
The court below's rejection of the defendant's assertion of right of free passage under Article 220 of the Civil Act on the ground that the defendant's specific succession of the new wind metal to which part of the land was transferred is just in accordance with the above legal principles and there is no error of law
C. On the third ground for appeal
Article 2 subparag. 11(b) of the former Building Act (amended by Act No. 4816, Dec. 22, 1994); Article 2 subparag. 11(b) of the former Building Act (amended by Act No. 4816, Dec. 22, 1994; i.e., a road designated by the head of a Si/Gun/Gu (limited to the head of an autonomous Gu; hereinafter the same shall apply) as a "road designated by the head of a Si/Gun/Gu," does not grant a person who has obtained a building permit, etc. or a person who has passed the road, a private right to freely pass the road
The court below's rejection of the defendant's assertion that the access road of this case is a road whose location was designated by an administrative disposition under the Building Act, and thus, the use of it can be free until the administrative disposition was revoked as a reflective effect. There is no error of law by misapprehending the defendant's legal assertion or by misapprehending the legal principles as to the road designated
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Son Ji-yol (Presiding Justice)