[1] The scope of application of Article 220 of the Civil Code as to the right to passage over surrounding land in a partial transfer

[2] The case holding that the right to passage over surrounding land cannot be asserted under Article 219 of the Civil Code as long as the right to passage over surrounding land is recognized as a third party's right to passage over the previous land owned by the transferor prior to the partial transfer, in case where part of the number of lots of lots of lots of lots of lots of lots of lots of lots

[1] In a case where a part of the land owned by the same person is assigned and cannot be contributed to the public, the right to passage over the surrounding land for the sake of the plot of land shall have only the previous land owned by the transferor prior to the partial transfer, and it shall not be recognized as to the land owned by another person, and a part of the land where the right to passage over the surrounding land takes place without compensation includes not only the case where a part of the land is transferred but also the case where a part of the number of lots

[2] The case holding that the right to passage over surrounding land cannot be asserted under Article 219 of the Civil Code as long as the right to passage over surrounding land is recognized as a third party's right to passage over the previous land owned by the transferor prior to the partial transfer, in case where part of a parcel of land owned by the same person is transferred,

[1] Article 220 of the Civil Code / [2] Articles 219 and 220 of the Civil Code

[1] Supreme Court Decision 93Da22906 delivered on December 14, 1993 (Gong1994Sang, 361), Supreme Court Decision 94Da45869, 45876 delivered on February 10, 1995 (Gong195Sang, 1317)

Plaintiff (Counterclaim Defendant) (Attorney Park Ho-ho, Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff)

Chuncheon District Court Decision 2003Na1407, 2004Na2155 Decided October 13, 2004

The part of the judgment of the court below concerning the principal lawsuit shall be reversed, and that part of the case shall be remanded to the Chuncheon District Court Panel Division.

We examine the grounds of appeal.

1. Fact-finding and judgment of the court below

A. According to the evidence adopted by the court below, the above 27-67 square meters and the above 27-2-67 square meters and the above 27-2-7 square meters and the above 27-2-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 7-27-7 square meters and the above 27-27-7 square meters and the above 27-27-7 square meters and the above 27-7-7 square meters and the above 27-7-7-7 square meters and the above 27-7-7-7-7 square meters of the land.

B. Next, the court below rejected the Plaintiff’s assertion that the above 227-67 land was owned by Hungary-27-27,00,000 and the above 227-27-67 square meters of land owned by Hungary-227-67 was not divided into 227-79, 227-80, and 227-82, and the Plaintiff was obligated to establish a road leading to public use of the above △△-27-67 land under Article 220 of the Civil Act, on the ground that the said 227-67-79, 227-79, 227-80 and 227-82 land was divided into 27-27,000 square meters of land owned by the said △△△-2277-677,000 square meters of land, which was divided into 275,000 square meters of land owned by the said △△-2764,2719-27.

2. Judgment of the Supreme Court

However, the recognition and determination by the court below, which rejected the defendant's assertion that the passage through the land of the above 227-79, 227-80 should be set up, cannot be accepted for the following reasons.

Where a part of the land owned by the same person is transferred and cannot be contributed to a public road, the right to passage over the surrounding land for the sake of the plot of land shall only be granted to the previous land owned by the transferor prior to the partial transfer, and the right to passage over the surrounding land shall not be granted to the land owned by another person. The partial transfer of the land where the right to passage over the surrounding land takes place without compensation includes not only the transfer of a part of the land, but also the transfer of a part of the number of lots of land owned by the same person, which is owned by the same person (see Supreme Court Decisions 93Da22906, Dec. 14, 1993; 94Da45869, 45876, Feb. 10, 1995)

However, according to the records, Sung-gun was divided into 27,00 on February 1, 1992 into 2. 7, 27,000, 27-2, 27,000 square meters, and 27-2,000 square meters on 27,000,000 and 27-7,000 square meters on 27,000 square meters on 27,000,000 and 277,000 square meters on 27,000,000 and 277,000 square meters on 27,000,000,000 and 277,000 square meters on 27,000,000,000 and 277,000 square meters on 97,000 square meters on 27,000 square meters on 27,000,000.

On the other hand, the facts are identical to this, the Plaintiff formed a group of lands with the above 227-67 land around December 16, 1994 at the time of purchasing the above 227-67 large scale 39 square meters from Chuncheon-gun, and even at present, there is only a right to free access to the surrounding land only for the land owned by Chuncheon-gun, which is 227-79 and 227-80, which is the integrated ownership of Chuncheon-gun, and as such, the Plaintiff cannot claim the right to passage over surrounding land under Article 219 of the Civil Act against the above 227-83 land owned by the Defendant, a third party.

Nevertheless, the court below rejected the defendant's assertion that the above 227-79 and 227-80 land should not be recognized as the right to passage over the surrounding land as long as the plaintiff is admitted as the right to passage over the surrounding land without compensation. In so doing, the court below erred by misapprehending the legal principles on the right to passage over the surrounding land without compensation or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and it is obvious that such illegality affected the conclusion of the judgment, and therefore, the defendant's ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below regarding the principal lawsuit shall be reversed, and that part of the case shall be 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 Young-ran (Presiding Justice)