[1] Whether the right to passage over the surrounding land is extinguished in a case where a public road is established on the surrounding land after the right to passage over the surrounding land was created (affirmative)

[2] The obligation of the person who succeeded to the portion of the passage on which the right to use and benefit was waived by the original owner

[3] Whether the right to use and benefit is restricted in a case where a house that requires a passage, except for a house that has no right to passage over the surrounding land, is purchased by the original owner of the road for which the right to use and benefit has been waived (negative)

[1] The right to passage over the surrounding land is recognized in a case where it is impossible to pass over the surrounding land, access to the surrounding land without establishing a passage, or the right to passage over the surrounding land cannot actually function as a passage because it is inappropriate to use the surrounding land even if there is a passage. Thus, even if the right to passage over the surrounding land has occurred, if it is no longer necessary to recognize the right to passage over the surrounding land due to the construction of a road adjacent to the surrounding land later, the right to passage over the surrounding

[2] In dividing and selling land, a person who succeeds to the ownership of the land while knowing the fact that the original owner of the land provides a part of the land as a divided passage of another land and renounces the exclusive and exclusive use right, and accordingly, the owner of another partitioned land bears the burden of restricting the use and profit-making on the part of the divided land after he/she passed the land free of charge. Thus, barring any special circumstances, a person who acquired the ownership of the land shall have no legitimate interest to claim exclusive and profit-making, as a matter of principle, barring any other special circumstances. Therefore, the owner of the partitioned land shall be entitled

[3] The mere fact that the successor to the portion of the passage on which the exclusive and exclusive use right has been waived by the original owner intended to purchase all the houses of nearby residents who need the passage along the passage for his own legitimate purpose, but failed to purchase only one house, but the remaining house of the remaining one person who failed to purchase is not entitled to passage through the passage acquired by the successor in contact with the opposite contribution, and therefore it is acknowledged that the remaining one house is satisfied with the obligation of contact under Article 33 (1) of the Building Act, even if it is not a passage, the right to exclusive use and benefit from the passage should not be restricted solely on the ground that the remaining house owner who has an interest in the passage suffers any disadvantage to a certain extent if he is unable to use it as the passage. The right to exclusively use and benefit from the passage of the successor who became the new owner of the passage by obtaining the building permit.

[1] Article 219 of the Civil Act / [2] Article 741 of the Civil Act / [3] Articles 219 and 741 of the Civil Act

[1] Supreme Court Decision 92Da1025 delivered on March 31, 1992 (Gong1992, 1421), Supreme Court Decision 92Da3631 delivered on December 22, 1992 (Gong1993Sang, 582), Supreme Court Decision 94Da14193 delivered on June 24, 1994 (Gong1994Ha, 2077), Supreme Court Decision 94Da43580 delivered on September 29, 195 (Gong195Ha, 3597) / [2] Supreme Court Decision 92Da15970 delivered on July 24, 1992 (Gong192, 2535), Supreme Court Decision 97Da19630 delivered on September 29, 194 (Gong1992, 2535), Supreme Court Decision 96Da29794 delivered on September 16, 1997

Applicant (Attorney Lee Jong-soo, Counsel for defendant-appellant)

Respondent (Attorney Kim Young-chul, Counsel for defendant-appellant)

Busan High Court Decision 96Na8826 delivered on September 11, 1997

The appeal is dismissed. All costs of appeal are assessed against the respondent.

We examine the grounds of appeal.

1. On the first ground for appeal

The right to passage over the surrounding land is recognized in a case where it is impossible to enter the public road without passing over the surrounding land, or passing over the surrounding land without establishing a passage, or where it is not possible to actually function as a passage because it is inappropriate to use the surrounding land even if there is a passage (see, e.g., Supreme Court Decisions 92Da1025, Mar. 31, 1992; 94Da14193, Jun. 24, 1994; 94Da43580, Sept. 29, 195). Thus, even if a right to passage over the surrounding land has been created, if a right to passage over the surrounding land becomes unnecessary due to a construction of a road adjacent to the surrounding land later, the right to passage over the surrounding land becomes extinct.

According to the records, when the respondent purchases the housing of this case owned by him, the part (A) in the judgment of the court below was the only passage which can have contributed to the housing of this case. However, since a new contribution was established by the river reconstruction construction project implemented on 1992, one side of the housing site of the respondent is connected with the new contribution, and there is no single floor or retaining wall which may seriously inconvenience the passage between the land and the new contribution of the respondent, and the respondent actually has a new contribution, and the respondent has a way to establish the new contribution. However, since it is recognized that the direct use of the above part (A) as the building of the housing of the respondent is somewhat inconvenient, the right to passage over the surrounding land of this case possessed by the respondent has become extinct as a matter of course at the time of opening a new contribution. Therefore, the judgment of the court below that the respondent does not have the right to passage over the surrounding land of this case has no right to passage over the surrounding land of this case as alleged in the judgment of the court below, there is no merit and there is no merit.

2. On the second ground for appeal

The court below held that, even if the non-party, who is his own ownership, divided the above part into several parcels of land, the non-party's exclusive right to use and benefit from the above part (the non-party's exclusive right to use and benefit from the above part (the non-party's exclusive right to use and benefit from the above part) was not the only passage for each divided owner of land, and the non-party's exclusive right to use and benefit from the above part (the non-party's exclusive right to use and benefit from the above part) was waived. However, if the non-party's exclusive right to use and benefit from the above part (the non-party's exclusive right to use and benefit from the above part), the non-party purchased the above part (the non-party's exclusive right to use and benefit from the above part) and the non-party's heir who is the owner of the above part (the non-party's exclusive right to use and benefit from the above part) and the non-party's exclusive right to use and benefit from the above part (the non-party's exclusive right to use and benefit from the new part).

In dividing and selling land, a person who succeeds to the ownership of the land with the knowledge of the fact that the original owner of the land provided a part of the land as a divided passage of another land and gave up the exclusive and exclusive use right and accordingly, the owner of another partitioned land knowingly bears the burden of restricting such use or profit-making as to the passage route, barring any other special circumstances, shall have no legitimate interest to claim in principle the exclusive and exclusive use or profit-making right of the land. Therefore, the original owner shall have the duty to allow the free use of the divided land as well as the original owner. However, the successor failed to purchase only one house of the neighboring residents who need such passage with his own legitimate purpose, but failed to purchase only one house for the original owner. The remaining one person's house without such purchase is adjacent to the opposite public road, and thus, the lower court's decision is justifiable in its holding that the remaining one person's exclusive use or profit-making right cannot be seen as satisfying the legal principles on the exclusive use right of the land, and thus, the lower court's decision is without merit.

3. On the third ground for appeal

As seen earlier, the Respondent's right to passage over surrounding land on the above part (A) is not recognized, and even if there is no passage over the above part (A), the Respondent's housing became a new contribution and meets the requirements of Article 33 (1) of the Building Act. Thus, the court below's finding the fact that the Respondent's request for revocation of permission to abolish a private road has been dismissed by the Daegu High Court is just taking into account the same fact, and therefore, it cannot be deemed that the judgment of the court below was a disadvantageous judgment against the Respondent based on the judgment which was appealed to the Supreme Court and not finalized. There

4. On the fourth ground for appeal

The fact that the Nonparty’s heir filed a lawsuit for the cancellation or invalidation of the sales contract of the instant alley does not affect the conclusion of the instant case. Therefore, there is no reason to examine the issues.

5. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)