Whether the right to passage over surrounding land is recognized in a case where the existing passage leading to a contribution is inappropriate for the use of the land concerned and does not actually function as a passage (affirmative)

Article 219 of the Civil Act

Supreme Court Decision 92Da1025 delivered on March 31, 1992 (Gong1992, 1421) Supreme Court Decision 94Da14193 delivered on June 24, 1994 (Gong1994Ha, 2077) Supreme Court Decision 2002Da53469 Delivered on August 19, 2003 (Gong2003Ha, 1865)

Lee Sung-nam (Attorney Choi Dong-dong et al., Counsel for the defendant-appellant)

Red machine (Law Firm Lee & Lee, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2002Na22358 delivered on October 20, 2004

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

The right of passage over surrounding land may be recognized not only in cases where a certain land cannot be controlled by a public road surrounded by another person's land, but also in cases where a certain passage has already been established but also the passage is inappropriate for the use of the land so that it does not actually function as a passage (see Supreme Court Decision 94Da14193 delivered on June 24, 1994, etc.).

After finding the facts as stated in its holding, the court below held that the so-called "Jorse road" alleged by the defendant as a separate passage, other than the land in this case, consists of several lots of forest land, site, dry field, etc., and the owners of the lots of land are different from each other, and that excessive expenses would be incurred in the plaintiff to open a passage on the middle road in light of its location, gradient, field, and surrounding status, etc. In addition, the plaintiff's construction of passage on the middle road would be excessive or excessive costs would not function as a passage because it is inappropriate for the use of the plaintiff's land even if the building was established, and there is no error of law such as misunderstanding of legal principles as to the right to passage over surrounding land or misunderstanding of facts against the rules of evidence as to the right to passage over surrounding land, as alleged in the grounds for appeal.

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

Justices Kim Hwang-sik (Presiding Justice)