A. Criteria for determining the scope of recognition of the right to passage over surrounding land and whether the damage of the owner of the surrounding land must be assessed (negative)

B. In a case where a specific passage seeking confirmation of the right of passage over surrounding land does not satisfy the requirements of Article 219 of the Civil Act and the right of passage over surrounding land is recognized on another part of the land, whether such claim is accepted (negative)

A. In recognition of the right to passage over surrounding land, the scope of the right shall be recognized within the scope of the place and method where the damage of the owner of the surrounding land is the lowest, and the issue of whether the damage is the lowest place for the owner of the surrounding land in light of social norms is sufficient to be determined in response to specific cases after considering the topography, location and utilization relationship of both surrounding land, surrounding geographical features, location and use relation, neighboring geographical state, understanding of the users of the surrounding land, and other various circumstances, and it does not necessarily require to assess the damage of the surrounding

B. To seek 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 it should be proved that the requirements under Article 219 of the Civil Act are met. Therefore, if it is not recognized that the specific passage part of the claim for confirmation satisfies the requirements under Article 219 of the Civil Act, in principle, the claim shall be dismissed even if the right of passage over surrounding land is recognized on another part of the land.

(b)Article 219 of the Civil Procedure Act, Article 188 of the Civil Procedure Act;

A. Supreme Court Decision 87Meu1156 decided Feb. 9, 1988 (Gong1988,501) (Gong198,501) 88Meu10739,10746 decided May 23, 1989 (Gong1989,986) (Gong1986) 91Da3251 decided Apr. 24, 1992 (Gong1676)

Plaintiff (Counterclaim Defendant) 1 and two others

Defendant-Counterclaim Plaintiff (Attorney Choi Young-soo, Counsel for defendant-appellant)

Seoul High Court Decision 90Na41593, 41960 decided Nov. 13, 1991

The appeal is dismissed.

The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

Defendant Counterclaim Plaintiff’s ground of appeal

1. According to the reasoning of the judgment below, the court below held that the defendant has a right to passage over the surrounding land owned by the plaintiffs to the extent that it is reasonable to pass through a public road on the land owned by the defendant within the extent that it limits the use of surrounding land in order to use the land without a passage necessary for the use of the land between the public road and the public road, so the scope of the right to passage is not only necessary to the person with the right to passage, but also to be recognized within the least extent that the damage to the owner of the surrounding land is caused by the adoption evidence, and the place which is the passage from the land site owned by the defendant to the public road to the extent that it is most damaged by the owner of the surrounding land is the 57 square meters of the attached Form 3 square meters of the judgment below's assertion. Thus, the defendant's counterclaim claim under the premise that there is a right to passage over the surrounding land among each land owned by the plaintiffs is not reasonable.

As decided by the court below, in recognition of the right to passage over surrounding land, its scope should be recognized within the scope of the place and method where the damage of the owner of the surrounding land is the lowest, and the issue of whether the owner of the surrounding land is the place where the damage is the lowest shall ultimately be determined in response to specific cases after taking into account the topography, location and utilization relationship of the surrounding land in light of social norms, surrounding geographic situations, understanding of the users of the surrounding land, and all other circumstances (see Supreme Court Decision 88Meu10739, 10746, May 23, 1989). It does not necessarily require an appraisal of the damage of the owner of surrounding land. According to the records, in recognition of the right to passage over surrounding land to the defendant, the defendant's argument to reach the national road No. 42 located north of the surrounding land of this case (attached Form 2 attached to the judgment of the court below, Section 47 square meters) is not recognized as the least damage to the plaintiffs, but rather it cannot be found that the plaintiffs were the most likely to reach a 10-meter or more than 3 meters of the judgment.

2. 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 it should also be proved that the requirements stipulated in Article 219 of the Civil Act are met. Therefore, in a case where it is not recognized that the specific passage part for which confirmation is sought by asserting that the right of passage over surrounding land has been granted satisfies the requirements stipulated in Article 219 of the Civil Act, the claim cannot be dismissed in principle, even if the right of passage over surrounding land

In this case, the court below rejected the defendant's counterclaim claim on the ground that among the land owned by the plaintiffs, the above attached drawing No. 2 (C.), the damaged part 47 square meters are one of the requirements stipulated in Article 219 of the Civil Code, and it is not deemed that there was an error of law because the court below did not urge the defendant to change the claim (in this case, there is no benefit of confirmation) seeking confirmation of the right to passage over surrounding land (in this case, it cannot be said that there is benefit of confirmation) on the part of the above attached drawing No. 3 which recognizes the use as a passage.

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 Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho