Plaintiff (Appointed Party)

Defendant

June 29, 2016

Changwon District Court Decision 2015Ra736 decided November 3, 2015

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The judgment of the first instance is revoked. The defendant confirmed that the plaintiff (appointed party; hereinafter referred to as "the plaintiff") and the designated parties have the right to passage over surrounding land with respect to the part of 2,010 square meters in the ship connecting each point of 7,865 square meters in the attached Form 1 through 21, and 1 (hereinafter referred to as "land subject to confirmation") among forest land 7,865 square meters in Gyeongcheon-gun ( Address 3 omitted), Chungcheongnam-gun (hereinafter referred to as "the plaintiff"), and the defendant shall not engage in any act obstructing the plaintiff and the designated parties from passing through the land verification. Of the land to be confirmed, the part of the land in question is 7.8 meters in width, 7.8 meters in length, 1.6 meters in length, 5.3 meters in width and 5.1m in width, 2.1m in length, 2m in width and 1.5m in length.

1. Basic facts

A. Status of the parties

1) The Plaintiff is a co-ownership right holder of forest land of 39372 square meters (hereinafter “the forest land of 1”) in Gyeongcheon-gun ( Address 1 omitted) and a 22215 square meters in forest land of Gohap-gun ( Address 2 omitted) adjacent land (hereinafter “2 forest land”) are registered for ownership preservation in the name of the deceased non-party 1, who is the father-do governor, and the relationship between the Plaintiff and the designated parties is as follows.

Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8’s children Nonparty 9, Nonparty 10, Nonparty 11, Nonparty 12 grandchildren Nonparty 13, Nonparty 14, and Nonparty 15 in relation to the Plaintiff’s name of the winner included in the main sentence.

2) The Defendant is the owner of 7865 square meters of forests and fields ( Address 3 omitted) adjacent to each of the instant forests, Gohap-gun (hereinafter “third forest”) located adjacent to the instant forest, and is currently growing grassland, etc. under the organic farming law from the 3 forest to the organic farming law.

B. Construction of the instant grave and forest road in this case

1) The Plaintiff’s parents graves are installed in the first forest and fields. The Plaintiff and the son Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, Nonparty 9, Nonparty 10, Nonparty 11, and Nonparty 12 were installed in the second forest and fields, and three graves for the first forest and fields (hereinafter “each of the instant graves”).

2) From around 1992 to around 1993, the Defendant opened a forest road of 1,000 meters with a loan from the Forest Development Fund, and thereafter, extended the said forest road from August 16, 1993 to January 12, 1994, with a total of KRW 21,698,00 (i.e., local expenses of KRW 19,528,200 + (i.e., local expenses of KRW 19,528,200 + the shares of KRW 2,169,80,800, the shares of KRW 90 per share, and KRW 10%) with a total of KRW 420 meters and a large of 4 meters subsidy (hereinafter collectively referred to as “instant forest road”).

C. Restriction on access to forest roads of this case

1) From around 1993, the Defendant: (a) around 1993 when the instant forest road was completed, left the entrance of the forest road by putting strings at the entrance of the forest road; and (b) around March 2013, the Defendant installed a steel-frame network and an electric fence covering the boundaries of the third forest land; and (c) installed a steel-frame and a iron fence at the entrance of the instant forest road, and restricted others’ entry.

2) In order for the Plaintiff and the designated parties to freely enter each of the instant graves, the land to be verified is established as part of the instant forest road and the boundary of the first forest land (hereinafter referred to as “responding land B and C”) on the boundary of the instant forest road. There is a iron (hereinafter referred to as “responding A”) on the boundary of the second forest and land, and the land to be verified is easily accessible to each of the instant graves if it is used.

(d) Disputes on forest roads of this case;

1) On February 2014, Nonparty 16, a village resident who was a resident of the instant forest road, installed a steel door, filed a complaint with the Defendant for interference with general traffic. On February 13, 2014, the head of the Changwon District District Prosecutors’ Office in charge of the instant case, the Defendant rendered a decision against the Defendant on the ground that “No suspicion” against the Defendant on the ground that “the instant forest road was established after the Defendant was established for the purpose of farm management and controlled another person’s access, and such passage cannot be deemed as a common passage for the traffic of the general public.”

2) After that, the Plaintiff filed a civil petition with the Anti-Corruption and Civil Rights Commission, etc. or filed a complaint against the Defendant on the ground that “the Defendant changed a public forest road to a private forest road (referring to the instant forest road) upon receiving unfair subsidies from the National Treasury.” On August 20, 2014, the Gohap-gun in charge of the investigation into the said civil petition respondeded the Plaintiff on the ground that “The instant forest road was established by the owner of the forest (the Defendant) with his own funds at the time of its initial establishment in 192, and that it was erroneous that the said road was changed from a public forest road to a private forest.”

[Ground for recognition] The fact that there is no dispute, Gap's evidence Nos. 1, 3, 4, 7, 8, 9, 10, 11 (including each number, if any, including each number; hereinafter the same shall apply), Eul's evidence Nos. 1 through 4, 9, or the result of on-site inspection by the court of first instance, the purport of the whole pleadings

2. The parties' assertion

A. Plaintiffs and designated parties

In order to enter each of the instant graves installed within the 1 and 2 forest areas, the Plaintiff and the designated parties have used the land to be confirmed as the only customary land for about 80 years. The Defendant installed the steel network and the electric fence at the entire boundary of the 3 forest areas, and installed the iron and steel fence at the entrance of the forest roads, thereby hindering the Plaintiff and the designated parties from using the land to be verified.

Therefore, the plaintiff and the selected parties are seeking confirmation that they have access to the land to be verified by the plaintiff and the designated parties, and the defendant voluntarily installed by the defendant on the right of passage, removal of the wire-works and the hacker door, etc. and removal of the right of passage to the surrounding land under Article 219 of the Civil Act are also seeking the exclusion of interference with passage to the land [the purpose of public interest is that the right of passage to the surrounding land under Article 219 of the Civil Act is to use the land without a passage necessary for its use between the public service and the public interest, and the right to use the surrounding land is not the right to use the surrounding land in order to obtain convenience for access to a specific part of the land (in this case, each of the graves in this case is applicable thereto). Thus, the plaintiff and the designated parties are owners of forests and fields in Article 1 and 2 (the plaintiff is the co-owner of the registered forest and field in the case of the plaintiff and the designated parties, and the right to share the surrounding

B. Defendant

In addition to the land to be confirmed, there is another passage from the public road to each grave of this case, so the plaintiff and the selected parties are not allowed to have access to the surrounding land.

3. Determination as to each lawsuit by the remaining designated parties except the plaintiff

The reasoning for this Court’s reasoning is as follows: (a) the part of the reasoning of the judgment of the court of first instance concerning each lawsuit by the designated parties other than the plaintiff 3.0 is the same as that of the judgment of the court of first instance; and (b) thus, (c) this Court

4. Judgment on the plaintiff's claim

A. (1) The right to passage over surrounding land recognized by Article 219 of the Civil Act refers to the right to access the surrounding land to a public road through the surrounding land in cases where there is no access to the surrounding land as necessary for the use of the land between a land and a public road, or where it is impossible to access the surrounding land to a public road without establishing a passage, or where excessive cost is required to pass through a public road.

2) The evidence presented by the Plaintiff alone is insufficient to recognize the fact that the only land connected with the forest land Nos. 1 and 2 is the land subject to verification, and there is no other evidence to acknowledge it. Rather, the above evidence and the first instance court’s overall purport of the pleadings are as follows. i.e., (i) the Plaintiff appears to be able to immediately enter the forest land No. 2 through public service; (ii) even without the land subject to verification, the Plaintiff’s access to the forest land No. 1 and 2 through other land around the 1 and 2 forest areas is deemed to be able to easily enter the forest land No. 1, 2 forest areas; (iii) the passage road necessary for the use of the forest land No. 1 and 2 forest areas refers to the way to the extent that the Plaintiff can pass through the forest land of this case without entering the 2 forest land through public service to reach the 1 and 2 forest areas, and thus, the Plaintiff’s assertion that the land subject to verification is difficult to reach the 1nd forest area or 1).

B. 1) Even if a family work Nos. 1 and 2 forest land can be access only through the land to be confirmed, since the right to passage over surrounding land is particularly recognized at the risk of damage to the owner of the land under way for the public interest purpose of using the land without a passage necessary for its purpose between the public interest and the public interest. As such, in determining the width, location, etc. of the passage route, the method of causing less damage to the owner of the land under way should be considered. Determination of the degree of necessity should be made within a specific scope in light of social norms, the following factors should be taken into account: (a) the geographical, location, and utilization relationship between the forest work and 2, as well as the land under way to be confirmed; (b) the adjacent geographical, location, and use relationship; (c) the understanding of the users of the surrounding land; and (d) the degree of damage suffered by the Defendant, the owner of the land under way to whom the right to passage was owned, by comparing and balancing the Plaintiff’s necessity and the degree of damage suffered by the owner of the land under way (see, etc.).

2) In light of the following circumstances acknowledged by the aforementioned evidence, i.e., the forest road of this case including the land to be confirmed is not the land used for access to 1 and 2 before the towing, but the Defendant’s private passage road established at his own expense for farm management. ② If the land to be verified is opened as a passage for 1 and 2 forests, it seems that many unspecified persons including the designated parties can use the land. In such a case, it is determined that the Defendant could easily interfere with the Defendant’s farm management, etc. In particular, it is difficult to view that the Defendant constructed a steel net and electric fence to support the Plaintiff’s access to the land to be located within the boundary of the 3rd land in order to prevent the Plaintiff from entering the forest, and thus, it is difficult to view the Plaintiff’s right to access the forest to be located within the boundary of the 1st place and the 2nd place and the 2nd place of the land to be located within the boundary of the 1st place and the 1st place of the land, and it is necessary to find the Plaintiff’s right to use of the forest and 3rd land.

5. Conclusion

If so, all of the appointed parties' lawsuits are dismissed, and the plaintiff's claims are dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Soo-eng (Presiding Judge)