In a case where there is a change in the status or specific use of surrounding land, whether filing a lawsuit for confirmation of right of passage, etc. by putting a place different from the place recognized by the existing final judgment, etc. as a passage goes against the res judicata of the above final judgment, etc. (negative)

Unlike the area for passage, the passage right to the surrounding land is not always fixed to a specific place. If the present condition or method of use of the surrounding land has changed, the person having the right to passage over the surrounding land has no choice but to move to another place where there is less damage on behalf of the owner of the surrounding land. Thus, even if a specific area is recognized as a passage by a final and conclusive judgment or protocol, etc., if the present condition or specific situation of the surrounding land or surrounding land, etc., which is the premise of the above requirement, are changed to the passage according to the specific situation in light of the legislative purport of Article 219 of the Civil Act and the principle of good faith, etc., and if there is no smooth agreement between the owners of the surrounding land and each owner of the surrounding land in the process, the passage right can not be seen as a conflict with the res judicata effect of the above final and conclusive judgment or protocol, etc. even if one party seeks the confirmation of the passage right to the surrounding land or the prohibition of passage obstruction, prevention, etc.

Article 219 of the Civil Act, Article 216 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Seoul High Court Decision 2003Na7519 delivered on January 29, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Unlike an area for passage, a passage to surrounding land is not always fixed to a specific place, and if the current condition or method of use of surrounding land has changed, a person having the right to passage over surrounding land has no choice but to move to another place where there is less damage on behalf of the owner of surrounding land (see Supreme Court Decision 92Da30528, Dec. 22, 1992, etc.). Thus, even if a specific area is recognized as a passage meeting the above requirements by a final judgment or a protocol of protocol, etc., if a change occurs in the current status or specific use of surrounding land or surrounding land which is the premise of the above requirements, it can be changed to a passage in accordance with the specific situation in light of the legislative purport of Article 219 of the Civil Act and the principle of good faith. If there is no smooth agreement between the owners of surrounding land and each owner of surrounding land in the process, one party cannot be seen as a passage to another place recognized by the existing final judgment or protocol of protocol, etc., and even if one party requests the confirmation, prohibition or prohibition of passage through the above final judgment.

In full view of the admitted evidence, the court below held that on November 27, 2001 between the plaintiff and the defendant, on the part of the land owned by the plaintiff, the defendant opened a passage at the expense of the plaintiff's land for the purpose of allowing access to public service, and that the defendant does not obstruct passage at the expense. At the time of the above judicial settlement, there was a ditch depending on the side and south side of the road at the time of the above judicial settlement, and that there was a tin, a part of the tin was cut off, and a part of the tin was laid down, so the location of the above passage was determined on the basis of its lost condition. The defendant was aware that around October 202, the above tin was safely repaired at the time of the conclusion of the first instance trial, and the defendant did not err in the misapprehension of legal principles as to the ground of appeal by opening a new tin or remaining side of the road at a distance more favorable to the plaintiff's prior to the conclusion of the first instance trial, and there was no further agreement between the defendant and the defendant on the changed passage (i.).

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)