(a) Scope of right to passage over surrounding land and criteria for judgment thereof;

(b) The claim for confirmation of the right of passage over surrounding land and the standard for its determination;

A. The right of passage over surrounding land under Article 219 of the Civil Act is restricted to the use of surrounding land for the purpose of using the land without a passage necessary for its use between the public road and its public road, so it is necessary for the person having the right of passage, and it is recognized within the scope of the place and method where the damage of the owner of surrounding land is the lowest. In conclusion, in light of social norms, the above scope should be determined after considering the topography, location, shape and utilization of both surrounding land, the understanding of the users of neighboring land, and all other relevant circumstances,

B. Where there is an existing passage which has already passed through a public road and it is used without any particular dispute between the owner of the land and the owner of the surrounding land, it shall be deemed as a passage satisfying the requirements of the preceding paragraph. However, unlike an area for passage, the passage right does not always always be fixed to a specific place, and when the owner of the surrounding land changes the method of use of the land which is used as an existing passage in accordance with the method of use (e.g., construction of a building on the ground) (e., construction of a building on the ground), the owner of the surrounding land has no choice but to move it to another place which has less damage on behalf of the owner of the surrounding land, so the claim for confirmation of passage right to surrounding land shall be confirmed as a land meeting the requirements of Article 219 of the Civil Act at the time of the closing

Article 219 of the Civil Act

A. Supreme Court Decision 76Da1359, 1360 delivered on October 26, 1976, Supreme Court Decision 85Meu129 delivered on October 22, 1985

[Defendant-Appellee] Defendant 1 et al., Counsel for defendant-appellee

The 7th National Federation of Korea, a foundation;

Suwon District Court Decision 87Na351, 352 decided March 4, 198 (Counterclaim)

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff (Counterclaim defendant).

As to the Grounds of Appeal:

Since the right of passage over surrounding land stipulated in Article 219 of the Civil Act limits the use of surrounding land for the purpose of using the land without a passage necessary for its original purpose between the public road and the public road, the scope of the right of passage should be recognized not only to the person holding the right of passage but also to the extent of the place and method where the damage to the owner of surrounding land is the least possible damage. The scope of passage should be determined in light of social norms after taking into account the topography, locational shape and use of both surrounding land, surrounding geographic state, understanding loss of the users of surrounding land and other all other circumstances and considering the specific case (see Supreme Court Decision 76Da1359, 1360, Oct. 26, 1976; Supreme Court Decision 85Meu129, Oct. 22, 1985; Supreme Court Decision 87Meu156, Feb. 9, 1988). Thus, the right of passage is already formed through the existing road and the owner of surrounding land without any dispute over it.

However, unlike the right of passage for the above surrounding land, if the passage is not always fixed to a specific place, but the surrounding land owner alters the method of using the land which was used as the existing passage in accordance with the method of use (e.g., construction of a building on that ground), the site owner is bound to move to another place where the damage is less than the damage is due for the surrounding land owner, and the claim for confirmation of the right of passage for surrounding land should be interpreted as confirming the land which meets the requirements of Article 219 of the Civil Code at the time of closing of argument.

According to the reasoning of the judgment in the judgment of the court below, it cannot be concluded that the passage of the above (B) portion to the passage of the above (A) portion cannot be established more than that of the defendant's already established, and rather, the defendant judged that the use of the above (A) portion as the passage of the above (A) portion is less than the damages to the plaintiff, and that the plaintiff's use of the above (A) portion as the passage of the above part as the passage of the above (A) portion is less than that of the above (A) portion, and there is no illegality in the judgment of the court below in this case where the plaintiff's new passage of the above part as the passage of the above (A) portion is expected to be changed to the above part as the plaintiff's new passage of the above part to the above (A) portion, and there is no error in the misapprehension of legal principles as pointed out by the plaintiff.

In addition, the removal of the structure pointing out by the theory itself does not seem to result in the falling of 12 meters away from the surrounding land, which makes it impossible to pass the surrounding land. Therefore, the above judgment of the court below cannot be deemed to result in the illegality of the reasoning, such as the theory of the lawsuit, and it cannot be accepted.

It is without merit that this appeal is dismissed, and it is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)