[1] In a case where a right to passage over surrounding land is no longer necessary because the surrounding land adjoins to a public road, whether the right to passage over surrounding land is extinguished (affirmative)

[2] The method of calculating the amount of damages to be compensated to the owner of the surrounding land, and whether the amount equivalent to the rent calculated by assessing the traffic area as the "road" can be deemed as the amount of damages to the owner of the surrounding land solely on the circumstance that the traffic right is recognized (negative)

[1] The right of passage over surrounding land is naturally established upon fulfillment of the legal requirements, and the requirements are extinguished as a matter of course if the requirements are lost. Therefore, the right of passage is extinguished in a case where the owner of the surrounding land is no longer needed to recognize the right of passage over surrounding land by acquiring the surrounding land due to changes in circumstances.

[2] The amount of damages to be compensated to the owner of the surrounding land is based on the amount equivalent to the rent for the traffic site according to the actual usage status at the time when the traffic right is recognized. In a specific case, in accordance with social norms, the amount equivalent to the rent calculated by evaluating the traffic site as the “road” cannot be deemed as the amount of damages to the owner of the traffic site, solely on the sole ground that the traffic right is recognized.

[1] Article 219 of the Civil Code / [2] Article 219 of the Civil Code

Plaintiff (Law Firm Doll, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Kim Dai-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na954 decided December 21, 2012

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the claim for return of unjust enrichment equivalent to the rent

A. According to the reasoning of the judgment below, the court below held that since the non-party, etc., the owner of the "(number 1 omitted) land" in the same location as the defendant, against the plaintiff, applied for provisional injunction against obstruction of passage based on the right to passage over surrounding land against the plaintiff, from December 29, 1999, until December 17, 2007 when the provisional injunction order was revoked, the part of the land of this case was used as "road", the court below should return to the plaintiff the amount of unjust enrichment equivalent to the rent that the defendant acquired "(number 2 omitted) land" from March 29, 2004 to December 17, 207, on the premise that the part of the land of this case is "road".

B. However, we cannot accept the judgment of the court below for the following reasons.

(1) The right of passage over surrounding land naturally shall be established upon fulfillment of the legal requirements, and shall naturally become extinct if the legal requirements cease to exist. Therefore, if the surrounding land is connected to a public road or the owner of the surrounding land becomes unnecessary to recognize the right of passage over surrounding land by acquiring the surrounding land due to changes in circumstances, the right of passage shall become extinct.

According to the reasoning of the judgment below, around May 2006, it can be known that the road of 4.5 meters wide and the road of 1.5 meters wide and the road of 1.5 meters wide are opened on the south part of the "land (number 2 omitted)" owned by the defendant. Thus, even if the defendant's right to passage over surrounding land of this case is recognized in accordance with the precedents of the non-party, etc., the defendant's right to passage over surrounding land of this case has already

(2) Article 219 of the Civil Act provides that, if no passage is available between a piece of land and a public road, the person holding the right to passage over the surrounding land shall be entitled to compensate for the damages of the person holding the right to passage, except in extenuating circumstances (see Supreme Court Decision 93Da51539, Jun. 28, 1994). However, in a case where a person holding the right to passage over the surrounding land occupies another’s land without legal title, the amount equivalent to the rent for the surrounding land should be deemed as the amount equivalent to the land’s occupation, barring special circumstances (see Supreme Court Decision 93Da51539, Jun. 28, 1994). However, in a case where the person holding the right to passage over the surrounding land passes over the road and does not have exclusive possession to the extent that it excludes the owner’s occupation, it cannot be deemed that the person holding the right to passage over the surrounding land can be deemed as the owner of the right to use the surrounding land’s land.

Examining the case in light of the above legal principles, since the land category of the instant land is a site and the Plaintiff is part of the “(number 3 omitted) land” that the Plaintiff used for a fee-charging parking lot, the Defendant’s right to passage over the instant land in accordance with the precedent of the Nonparty, etc., even if the Defendant acknowledged the Defendant as to the portion of the instant land, insofar as the Defendant did not have an exclusive possession to the extent that the part of the instant land was passed through as a passage to a public road and that it was excluded from the Plaintiff’s occupation, the Plaintiff’s damage caused by the Defendant’s passage is based on the time of acquisition of the Plaintiff’s land ownership of both the Plaintiff and the Defendant, the property tax imposed on the instant land, the number and method of the users of the instant land, etc., the mode of use of the land as a “parking lot site,” the mutual use relationship as a parking lot and accommodation adjacent to the commercial area, and the Plaintiff’s and the Defendant’s right to passage over the surrounding land, and thus, it cannot be assessed as the Plaintiff’s damages.

(3) Nevertheless, the court below erred in the misapprehension of legal principles as to Article 219 (2) of the Civil Act, which provides for the extinction of the right of passage over surrounding land and compensation for damages to the owner of the land, and the ground of appeal assigning this error is with merit. The court below's determination that the defendant's right of passage over surrounding land should be acknowledged until December 17, 2007, and the period for recognizing the right of passage over surrounding land should return to the plaintiff the amount of unjust enrichment equivalent to the rent under the premise that the part of the land in this case is "road".

2. As to the claim for damages

A. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s act of preventing the Plaintiff from expanding and installing the parking lot operated by the Plaintiff from “(number 3 omitted) land before December 17, 2007,” and therefore, the Defendant is liable only for damages suffered by the Plaintiff due to the Plaintiff’s obstruction of construction work after December 17, 2007, since the Nonparty, etc.’s application for provisional disposition on the prohibition of interference with passage based on the right to passage over surrounding land against the Plaintiff was accepted from December 29, 199 to December 17, 2007.

B. However, since the defendant's right to passage over the surrounding land of this case had already been extinguished on or around May 2006, the defendant's act of obstructing the plaintiff's construction may be deemed unlawful. However, on different premise, the court below erred in the misapprehension of legal principles as to the extinction of the right to passage over surrounding land, and the ground of appeal pointing this out has merit.

3. Conclusion

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)