[1] In a case where the right of passage over surrounding land is recognized, the standard for determining the width, location, and method of passage, etc. of passage along surrounding land / Whether the condition of passage over surrounding land should be compared to the situation of use in advance when determining the scope of passage over surrounding land (negative), and whether the right of passage over surrounding land should be allowed to the extent

[2] In a case where Gap et al. sought confirmation of the right to passage over surrounding land for the purpose of passing over a part of Eul's land, the case holding that Gap et al.'s right to passage over surrounding land is not recognized in light of all circumstances, including the fact that the existing right to passage over a road used for the purpose of passing over a public road is inappropriate to use the land owned by Gap et al., and thus it cannot be seen that the right

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

[1] Supreme Court Decision 2005Da70144 decided Jun. 2, 2006 (Gong2006Ha, 1249) Supreme Court Decision 2005Da3093 decided Oct. 26, 2006 (Gong2006Ha, 1979)

Plaintiff (Withdrawal)

The Intervenor succeeding the Plaintiff

The Intervenor succeeding the Plaintiff (Withdrawal)

Intervenor succeeding to the Plaintiff (Withdrawal)

Namyang-si (Law Firm LLC, Attorneys Kim Ho-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na2008586 decided December 1, 2014

The part of the judgment of the court below on the claim for confirmation of the right to passage over surrounding land with respect to the area of 30 square meters, which connects in sequence 35, 7, 8, 36, 37, 12, 34, and 35 the attached table of measurement drawing to the Seoul High Court, is reversed, and this part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The right of passage over surrounding land, as stipulated 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, between the public service and the public interest. Therefore, even if the right of passage over surrounding land is recognized, the width, location, and method of passage should be the least amount of damage to the owner of the right of passage, and it should be determined in accordance with social norms by taking into account, in a specific case, the geographical and locational features, location, and utilization relationship of the land between the parties concerned, the neighboring geographical and location, the neighboring geographical state, the user’s understanding of the surrounding land, and other relevant circumstances (see Supreme Court Decision 2005Da70144, Jun. 22, 2006

The scope of the right of passage over surrounding land is recognized within the scope of the use of the current land in accordance with the current usage of the land, and furthermore, it is not necessary to set the passage route in preparation for the future use status (see Supreme Court Decision 2005Da30993, Oct. 26, 2006, etc.). Furthermore, according to the method of land use, the establishment of passage through which automobiles, etc. can pass is allowed, but it does not allow the passage of automobiles to the extent that it is considered to be somewhat necessary for the convenience of land use (see Supreme Court Decision 2005Da70144, Jun. 2, 2006, etc.).

2. The judgment of the court below on the plaintiff's successor (hereinafter "the intervenor")'s claim and its determination are as follows. The intervenor against the defendant is entitled to seek confirmation on the right to passage over surrounding land for automobile traffic, and further, pursuant to the right to passage over surrounding land of 1,588.7 square meters (hereinafter "the road of this case") on the road of this case established at the starting point of the road of this case (the opposite direction to the adjacent land of this case) (the opposite direction to the adjacent land of this case) (the adjacent land of this case) and the passage over the road of this case from the adjacent land of this case, among the part of 271 square meters (hereinafter "the adjacent land of this case"), which is owned by the defendant, 30 square meters (hereinafter "the adjacent land of this case"). The court below determined that the intervenor of this case has the right to passage over the road of this case from each of the surrounding land of this case, in full view of the following circumstances:

A. At both edges of the instant road, delivery (report) was made at a height higher than the center part, and the width of 1.5 meters divided by installing a boundary stone. At the center part, the roadway of 4-4.3 meters wide was formed.

B. The owner of each of the instant land and its surrounding land each year cultivated dry field, and the concrete packaging roads that can pass from the place to the public by using automobiles (hereinafter “previous packaging roads”) existed before the new construction of the instant apartment, but as the instant apartment was newly constructed around October 209, the previous packaging roads were closed. During the new construction of the instant apartment, the Defendant constructed the instant road for the purpose of providing the passage roads to neighboring residents instead of the previous packing roads, and even if the need for passage through the instant road still remains, the Defendant still had to build a visible road at the beginning point of the instant road at the time of the construction of the instant road, thereby making it impossible to pass the instant road using the automobiles.

C. The dispute of this case and the road of this case are the shortest passage from each land of this case to the public road, and even in comparison with any other land around the land, it constitutes a place where damage is low to the owner of the land under way or surrounding land.

D. Between the road of this case and the outer wall of the apartment of this case, fences, asphalt packing roads, and high-speed trees are constructed. The end point of the road of this case is a dead-end road located on the neighboring land of this case, and thus, the expected vehicle traffic volume is not high. Therefore, even if the passage of the vehicle of this case is permitted on the road of this case, the degree of infringement on the freedom, peace, and safety of the residence of the residents of this case cannot be seen as high.

E. Although large-scale construction may be necessary for a large-scale motor vehicle to pass through a large range of common motor vehicle in the instant dispute, considering the need for the special motor vehicle to pass through the instant dispute as it is now in the present condition, the right of passage over surrounding the instant dispute itself cannot be denied on the ground that it is difficult for the motor vehicle to pass through the current state or it is highly dangerous or cost due to additional passage construction.

3. First, we examine the part of the judgment of the court below regarding the claim for removal of the instant visible road and the prohibition of interference with traffic on the instant road.

In light of the relevant legal principles and records, the judgment of the court below that the road of this case is recognized as the right to passage over surrounding land for the passage of automobiles is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the right

4. Next, we examine the part of the judgment below as to the claim for the confirmation of the right to passage over surrounding land in the dispute of this case.

A. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following facts and circumstances are revealed.

1) The land category of the instant land is a dry field or forest, the field of which is located in a relatively small size. The cultivation of dry field crops is being carried out only in a relatively small size. The instant land is not carried out in a scale or manner to the extent that automobiles or farming machinery should have entered directly. Even if there is a possibility of farming in the future using large scale or farming machinery, this is not a matter to be considered in determining the current passage.

2) At the end of the road adjacent to the instant adjacent land, there is a retaining wall with a height of about 10 meters, and there is a concrete retaining wall with a height of about 5 to 10 meters on the right side, and the part of the instant dispute itself is the land with a gradient of the slope. Therefore, as long as a large-scale construction for filling or cutting is not performed on the part of the instant dispute, it is difficult not only for the traffic using the vehicle but also for the passage along the valley.

3) After the end of the road of this case, the adjacent land of this case (excluding the part concerning the dispute of this case) and the land of Namyang-si ( Address 3 omitted) and the total length of about 40 meters up to each land of this case is opened (hereinafter “on-site bypassing passage”). The owners of each land of this case have cultivated dry field crops every year, following the passage through each land of this case through the existing bypassing passage even after the previous route was closed.

4) The total length of the road of this case is up to 178 meters. If the passage through the road of this case is free due to the removal of the seeradds located at the starting point of the road of this case, even if the passage through the road of this case is not opened on the part of the dispute of this case, the intervenor can use the motor vehicle from the starting point of the road of this case to the end point of the road of this case, and then the passage from the end point of the road of this case to the end point of the road of this case, and then the passage through the road of this case can be seen as not impeding the transportation of dry field crops and equipment necessary for their cultivation. In light of the scale of cultivation of each land of this case, only allowing the above passage through the road of this case,

B. Examining the above facts in light of the legal principles as seen earlier, it cannot be deemed that the right of passage, which is the passage used by the intervenors for the purpose of passing through the roads of this case, is inappropriate for the use of each land of this case, and thus cannot be deemed as a sufficient function as a passage. It cannot be said that the passage cannot be deemed a case where access to the road of this case without passing through the part of the dispute of this case is impossible or excessive costs are demanded. The opening of the passage on the part of the dispute of this case cannot be deemed as the place where the Defendant suffered the least damage. Accordingly, the Intervenor cannot be deemed as having the right of passage over the surrounding land for the purpose of passing through each part of the dispute of this case.

C. Nevertheless, the lower court, solely on the grounds indicated in its reasoning, determined that the Intervenor has the right to passage over the surrounding land for the sake of motor vehicle traffic on the part of the instant dispute. In so doing, it erred by misapprehending the legal doctrine on the right to passage over surrounding land, thereby adversely affecting the conclusion

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning the claim for confirmation of the right to passage over surrounding land among the judgment below regarding the dispute of this case 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. It is so decided as per Disposition by the assent

Justices Kim Jae-hyung (Presiding Justice)