Whether the right of passage over the surrounding land is recognized in a case where a vehicle is already unable to pass or it is difficult to pass through, even if there is another passage (negative)

If a land has already another passage between the public road and the public road, the owner of the land shall not be entitled to have a passage to the surrounding land solely on the ground that the passage of the vehicle is more convenient.

Article 219 of the Civil Act

May 11, 1976, 75Da2338 decided May 11, 197 (Article 219(5) of the Civil Act, Article 219(5) 319 of the Civil Act, Article 11238, Article 24B-3, 538 No. 9158)

Plaintiff

Defendant 1 and 7 others

1. 피고들은 서울 용산구 한남동 (지번 생략) 대 812평방미터중 별지도면표시 ㉮, ㉯, ㉰, ㉮의 각 점을 차례로 이는 선안의 (갑)부분 약 10평 및 같은 도면표시 ㉱, ㉲, ㉳, ㉴, ㉵, ㉶, ㉷, ㉱의 각 점을 차례로 이은 선안의 (을) 부분 약 20평을 통행하여서는 아니된다.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. According to each description of Gap evidence No. 1 (the copy of the land register), Eul evidence No. 1 (the cadastral status survey, Eul evidence No. 2-3) (the same shall apply to the land register), and Eul evidence No. 1 (the land cadastral status survey, Eul evidence No. 2-3) where the defendants passed through the land portion (the land portion in this case) of the order entry, there is no dispute between the parties concerned, and it can be acknowledged that the part of this case is owned by

2. In the instant case, the Plaintiff filed a claim against the Defendants for the prohibition of passage to the instant land portion based on the above recognized facts. Accordingly, the Defendants asserted that they have the right of passage to the instant land portion because there is no passage to the land owned or occupied by them, and therefore, they need to use the instant land portion to enter the public road.

Therefore, comprehensively taking account of the above evidence and the purport of the above on-site inspection of the above land by the Defendants, the land site of the building residing in Yongsan-gu Seoul Metropolitan Government is 8 mountain village, such as 60- 13, 14, 15, etc. of the annexed drawing, and its public use is no longer possible, and the Defendants’ access to the above-mentioned land as long as it is possible to use the above 30 meters away from the third party road to the above 10-meter away from the above 3rd party road (the above 3rd party road to the 1st party road), and the above 1st party road is no longer possible to use the above 1st party road to the above 2nd party road by using the above 1st party road to the above 3rd party road (the above 1st party road to the above 3rd party road to the above 1st party road to the above 1st party road to the above 2nd party road to the above 3rd party road to the above 1st party road road (the above 2nd party road road).

In addition, the Defendants asserts to the effect that the servitude regarding the instant land was acquired by prescription, so in order to acquire by prescription the owner of the dominant land, the situation where the owner of the dominant estate opened a passage on the dominant estate and uses the servient estate at all times shall continue to exist for 20 years. In the instant case, there is no evidence to acknowledge the fact that the Defendants opened a passage on the instant land and continued to use it for 20 years, and the Defendants’ assertion is groundless.

Furthermore, the defendants further asserted that the prohibition of passage of the part of the land was abuse of rights by mutual agreement with the part of the non-national university adjacent to the part of the land, while the plaintiff provided the part of the land as the passage to the only part of the land, so there is no evidence to prove that the plaintiff agreed with the part of the non-national university as above with the part of the non-national university. In addition, the plaintiff did not constitute abuse of rights to prohibit the passage of the part of the land of this case by the defendants on the sole basis of the agreement with the part of the non-national university. Thus, the above assertion is groundless.

3. Therefore, the defendants are not entitled to pass through the part of the non-owned land, so the plaintiff's claim of this case seeking the prohibition of passage is justified, and the burden of litigation costs is decided as per Disposition by applying Articles 89 and 93 of the Civil Procedure Act.

[Attachment Form Omission]

Judges Park Young-sik (Presiding Judge)