[1] In a case where the right of passage over surrounding land is recognized under Article 219 of the Civil Act, the criteria for determining the width and location of the passage route, and whether the right of passage over surrounding land shall be permitted to the extent that the traffic of motor vehicles is possible

[2] The measures to be taken by the court in a case where part of the specific passage for seeking the confirmation of the right of passage over surrounding land satisfies the requirements under Article 219 of the Civil Code, which is the provision of the right of passage over surrounding land

[3] Whether a removal of a structure that obstructs the passage by exercising the right of passage over surrounding land can be demanded (affirmative)

[1] The right of passage over surrounding land as stipulated in Article 219 of the Civil Act is particularly recognized to be used at the risk of 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, and in determining its width or location, the method of causing less damage to the owner of the right of passage shall be considered. The degree of necessity shall be determined based on the topographical, location, and utilization of the land between the owners of the right of passage, the neighboring geographical state, the understanding of the users of the right of passage, and all other circumstances according to social norms in a specific case. The method of use of the land shall be permitted only when the construction of the passage through which a vehicle, etc. can pass is permitted, but it shall not be permitted even if it is considered to be a somewhat necessary condition for the convenience of land use.

[2] In order to obtain confirmation of the right of passage over surrounding land, the place and method of passage must be specified in the purport of the claim, and the requirements as stipulated in Article 219 of the Civil Code shall be asserted and presented. Therefore, in a case where the specific passage part for which confirmation is sought by asserting that the right of passage over surrounding land exists is not recognized to meet the requirements as stipulated in Article 219 of the Civil Code, the claim shall be dismissed in principle even if the right of passage over surrounding land is recognized in other part of the land. However, in a case where part of the specific passage part for which confirmation of the right of passage is sought satisfies the requirements stipulated in Article 219 of the Civil Code and the right of passage over surrounding land is recognized, unless it is evident that only that the part has no intention to seek confirmation of the right of passage, the claim shall not be dismissed in whole,

[3] In order to display the original function of the right of passage over surrounding land, the structures such as fences that obstruct the passage must be removed by the exercise of the right of passage over surrounding land.

[1] Article 219 of the Civil Act / [2] Article 219 of the Civil Act, Article 203 of the Civil Procedure Act / [3] Article 219 of the Civil Act

[1] Supreme Court Decision 91Da32251 delivered on April 24, 1992 (Gong1992, 1676), Supreme Court Decision 94Da16076 delivered on October 21, 1994 (Gong1994Ha, 3068), Supreme Court Decision 94Da506 delivered on February 3, 1995 (Gong1995Sang, 1155), Supreme Court Decision 96Da10171 delivered on May 14, 1996 (Gong196Ha, 1860), Supreme Court Decision 200Da343440 delivered on November 29, 209 (Gong196, 1860), Supreme Court Decision 200Da34740 delivered on May 16, 2005 (Gong197, 196)

Plaintiff

Defendant (Law Firm Min & Yang, Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2005Na1710 Decided October 7, 2005

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The right of passage over surrounding land under Article 219 of the Civil Act is particularly recognized 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 required for its use between public service and the public interest. Thus, in determining the width or location, etc. of the passage route, the method of causing less damage to the owner of the right of passage should be considered. Determination of a certain degree of necessity should be based on the geographical and locational shape and use relation of the land between the parties in accordance with social norms in a specific case (see, e.g., Supreme Court Decision 2003Da18661, Jul. 14, 2005). Accordingly, in accordance with the method of using the land, the passage of motor vehicles should not be permitted only when the construction of the passage through which the motor vehicles, etc. is permitted, but it is considered to be somewhat necessary to ensure the convenience of land use, not until it is permitted (see, e.g., Supreme Court Decision 94Da160766, Oct. 21, 21994).

The court below acknowledged that the plaintiff has the right to pass the land of this case owned by the defendant in order to contribute to his public service, and further acknowledged that the plaintiff's right to pass the land of this case, i.e., the plaintiff's assertion as to the scope of his right to pass the land, i., the removal of grassland, grassland after the bend, the installation and removal of tombstones and tombstones, the installation of tombstones and tombstones, and the landscape gardening, etc. in the above land which is used as the family cemetery of the plaintiff's relatives, are essential to pass the vehicle's access to the land. The court below found that the distance from the public service to third party's land and the land owned by the plaintiff through the order of land owned by the defendant is close to about 100 meters (as a result of a survey and appraisal at the original court, the part of the land owned by the defendant is nothing more than about 44 meters) and that the plaintiff's right to pass the land of this case can be sufficiently achieved, and that the plaintiff's right to pass the surrounding land of this case is not a legitimate ground for appeal.

However, it is difficult to accept the decision of the court below to dismiss the entire claim on the ground that the plaintiff's claim for confirmation of traffic right of this case deviates from the purpose of land traffic.

As cited by the court below, in order to obtain confirmation of the right of passage over surrounding land, the place and method of passage must be specified as the purport of the claim, and the requirements of Article 219 of the Civil Act shall be asserted and proved. Therefore, in a case where a specific passage for which confirmation is sought by asserting that the right of passage over surrounding land satisfies the requirements of Article 219 of the Civil Act, the claim shall be dismissed in principle even if the right of passage over surrounding land is recognized (see Supreme Court Decisions 91Da47086, 47093, Jul. 24, 1992; 2004Da51757, 51764, Dec. 24, 2004, etc.). On the contrary, if part of the specific passage for which the plaintiff seeks confirmation of the right of passage satisfies the requirements of Article 219 of the Civil Act and the right of passage over surrounding land is recognized, it is reasonable that the plaintiff's claim should not be accepted in part only to the plaintiff.

However, according to the records of this case, the part concerning the passage for which the plaintiff seeks confirmation of passage right by alleging that there is a need for passage through a vehicle is specified by a certain width of about three meters depending on the fence installed on the south side of the land owned by the defendant. The part concerning the land owned by the plaintiff and the land owned by the defendant were divided into the land owned by the plaintiff and the land owned by the defendant, and the defendant was known that the plaintiff used it as a passage before acquiring the land, and that the defendant was aware of such passage at the time of purchase of the land. Thus, even though the plaintiff did not have the right to passage through a vehicle, and only the right to passage through a walking is recognized, it is reasonable to view that the part concerning the passage is the part of the passage for which the plaintiff seeks confirmation, and in such a case, the court below should have dismissed the plaintiff's claim on the ground that the part concerning the passage for which the plaintiff seeks confirmation does not meet the requirements of Article 219 of the Civil Act, and further, the part concerning the right to passage right and the part concerning the passage.

On the other hand, in order to display the original function of the right of passage over surrounding land, a structure such as a wall that obstructs the passage should be removed by the exercise of the above right of passage (see Supreme Court Decision 90Da5238, 90Meu2761, Nov. 13, 1990). Thus, the court below held that the plaintiff has the right of passage over surrounding land to the extent necessary for entering the land through the fence among the land owned by the defendant. On the other hand, although the fence installed on the boundary of the land is an obstacle that obstructs passage, and the measure that rejected the request of removal of the fence is an error of law by misunderstanding the legal principles as to the inconsistency in the reasoning of the judgment or the right of passage over surrounding land, which affected the conclusion of the judgment. Thus, this part of the ground of appeal is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)