Plaintiff (Appointed Party)

Defendant

October 13, 2015

1. All of the lawsuits shall be dismissed by the remaining designated parties, excluding the plaintiff (appointed parties);

2. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The defendant confirmed that the plaintiff (appointed party; hereinafter referred to as the "the plaintiff") and the selected parties have the right to pass on the part 2,010 square meters in the ship (hereinafter referred to as "land subject to confirmation") connecting each point of 1 through 21, and 1 of the annexed drawings among forest land 7,865 square meters in 7,865 square meters in Gohap-gun, Chungcheongnam-do ( Address 3 omitted), and the defendant shall not perform any act that obstructs the passage of the land to the plaintiff and the selected parties. Of the land to be confirmed, the defendant shall not perform any act that interferes with the passage of the land in the part of the doorA in the ship by the plaintiff and the selected parties, and 7.8 meters in width, 1.6 meters in length, 5.3 meters in width, 2 meters in width, 3 meters in width, 2.1m in width, 1.5m in length, 1.5m in length.

1. Basic facts

A. (1) (1) The Plaintiff is a co-ownership right holder of forest land of 39372m2 square meters (hereinafter “one forest”) in Gyeong-gun, Chungcheongnam-gun, ( Address 1 omitted), and a 22215m2 (hereinafter “two forest land”) in the neighboring land, Gohap-gun ( Address 2 omitted) is a neighboring land. The Plaintiff’s ownership preservation registration was completed in the name of the deceased non-party 1, who is a father-gun, the Plaintiff’s father-gun.

(2) The relationship between the designated parties against the Plaintiff is as follows:

Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8’s children Nonparty 9, Nonparty 10, Nonparty 11, Nonparty 12 grandchildren Nonparty 13, Nonparty 14, and Nonparty 15 in relation to the Plaintiff’s name of the winner included in the main sentence.

(2) The Plaintiff’s parent grave was installed in the forest and field No. 1. The Plaintiff and the appointed Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, Nonparty 9, Nonparty 10, Nonparty 11, and Nonparty 12 were installed in the forest and field No. 2 (hereinafter “each of the instant graves”).

B. (1) Since around 1992, the Defendant, as the owner of the land adjacent to each of the instant forests and fields in Gohap-gun, Gyeongnam-gun ( Address 3 omitted), opened a forest road leading to the 3 forest land by obtaining a loan from the Forest Development Fund. From around 1993, since around 193, a forest road was completed, the Defendant restricted the entry of a vehicle in a forest road by putting strings at the entrance of a forest road, leaving a hackss, leaving the string at the entrance of a forest road. From March 2013, the Defendant installed a steel net and electric fence, which combines the 3 forest land boundary, and installed a forest road at the entrance of a forest road (hereinafter the said forest road referred to as the “instant forest road”).

(2) At present, the Defendant is growing medicinal herbss, etc. from forest land No. 3 to the organic farming method.

C. The land to be verified in order for the Plaintiff and the designated parties to freely enter each of the instant graves is established on the part of the instant forest road and on the boundary of the first forest land (hereinafter referred to as “c,” in the attached drawings), and where the land to be verified is used, the land can be easily accessed to each of the instant graves.

D. (1) Before the Defendant constructed a steel-frame and electric fence at the boundary of the third forest, the Plaintiff and the designated parties had access to each of the instant graves using the land subject to verification before installing a steel-frame and a steel fence at the entrance of the forest road. The Plaintiff filed a complaint with the Defendant for interference with general traffic.

(2) On February 3, 2014, the head of the Changwon District Prosecutors’ Office in charge of the accusation case investigated neighboring residents, and rendered a decision as to “no suspicion” against the Defendant on the ground that “The instant forest road was established by the Defendant for the purpose of farm management, and the passage of the Defendant cannot be deemed as a common passage to and from the general public, since the forest road was established for the purpose of farm management at around 1993.”

(3) Subsequent to that, the Plaintiff filed a civil petition with the Anti-Corruption and Civil Rights Commission, etc. or filed a complaint against the Defendant on the ground that “the Defendant changed a public forest road to a private forest road (referring to the instant forest road) upon receiving unfair subsidies from the National Treasury.” On August 20, 2014, the Gohap-gun in charge of investigation into the said civil petition respondeded the Plaintiff to the effect that “The instant forest road was established by the owner of the forest (the Defendant) as at the time of its initial construction in 192, with the knowledge that the said road was changed from a public forest road to a private forest.”

[Ground of recognition] A without any dispute, Gap evidence Nos. 1, 7, 9, 10, 11 (including each number, if any; hereinafter the same shall apply), Eul evidence Nos. 1 through 8, Gap evidence Nos. 4 and 8, the video of this court's on-site inspection result, the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff and the designated parties have used the land to be confirmed as the only customary land for about 80 years in order to enter each of the instant graves installed within the 1 and 2 forest areas, which are the blind land.

However, the defendant constructed a steel network and electric fence at the entire boundary of the forest and field No. 3, and installed a iron and steel fence at the entrance of a forest road, thereby hindering the use of the land by the plaintiff and the designated parties.

Therefore, it is sought to confirm that the defendant has the right of access to the land to be confirmed by the plaintiff and the selected parties, and the defendant voluntarily established the right of access and the removal of the steel nets and hacks and the exclusion of the obstruction of land passage.

3. Determination as to each lawsuit by the remaining designated parties except the plaintiff

(a) The relevant Acts and subordinate statutes;

Article 219 (Right of Passing over Surrounding Land) (1) of the attached Table included in the main sentence (Right of Passing over Surrounding Land) (1) If there is no passage between a certain land and a public road necessary for the use of the land, and the owner of the land is unable to reach the public road without passing over the surrounding land or passing over the road, or the cost to reach the public road is excessive, he may pass over the surrounding land, and if necessary he may construct a passage. But, the method

B. Determination

(1) The right to passage over surrounding land, stipulated under Article 219 of the Civil Act, is a right based on the adjustment of mutual use of neighboring land, and is recognized only for the owner or superficies of the land and the person holding the right to use the land, such as the person holding the right to use the land (see, e.g., Supreme Court Decisions 75Da1958, Sept. 13, 197; 2007Da22767, May 8, 2008). Thus, it is difficult to deem that the person holding the customary authority to manage a grave installed within a certain land has the right to seek the passage over surrounding land for the use of the land where the grave is located.

(2) However, in the case of the remaining designated parties other than the Plaintiff, the assertion that “the contents of each of the instant graves are to be jointly managed, and to seek confirmation of the passage of the land to be verified,” and even according to the assertion itself, it can be determined that the remaining designated parties are not the owners of the first, second, forest, or superficies, the land intended to seek passing over the surrounding land, or the persons holding the right to use the surrounding land, such as the person holding the right to use the entire forest or the right to use the land, and there is no evidence to acknowledge

(3) Therefore, the remaining designated parties, other than the Plaintiff, do not have any interest in seeking confirmation of the passage of the land to be verified, and all their lawsuits are unlawful.

4. Judgment on the plaintiff's claim

A. Understanding the Plaintiff’s claim

As seen earlier, the right to passage over surrounding land under Article 219 of the Civil Act is for the public interest, which is the use of land without a passage necessary for its use, between the public interest and the public interest, and it does not mean the right to use surrounding land in order to obtain convenience to enter a specific part of the land (in this case, each grave of this case is applicable thereto).

However, the plaintiff is seeking confirmation of the passage of the land to be confirmed in order to access each grave of this case. As to the purport of the plaintiff's claim, the plaintiff is the owner of the first and second forest land (in the case of the plaintiff, he is the co-owner of the first forest land registered and has the right to share in the second forest land, the ownership of which has been registered in the name of the network section) who has the right to share in the surrounding land.

B. Determination

(1) First, as alleged by the Plaintiff, whether the forests and fields Nos. 1 and 2 are limited to the land to be verified in order to have access to a public road as a master land.

However, the evidence submitted by the Plaintiff is insufficient to recognize the fact that the only land connected to the first, second and second forests is the land to be confirmed, and there is no other evidence to acknowledge it. Rather, comprehensively taking account of the above evidence, the result of the on-site inspection and the overall purport of the pleadings by this court, it is determined that the second forests and fields are directly connected with the meritorious services, or that they can easily enter the first, second forests and fields in the meritorious services using other lands around the first, second forests and fields (in the event that the land to be verified is connected with the first, second forests and fields, but the distance between the first, second forests and the meritorious services is maintained through the land to be verified, if the distance between the first, and second forests and the meritorious services is maintained, it would rather result in a considerable distance to enter the first, second forests and fields through the land to be verified, thereby having access to the land to the public service in order to enter the first, second forests and fields as public service in the first, and second forests and fields.

(2) Even if it is difficult for the Plaintiff to have access to a forest by means of public services only through the land to be confirmed, considering various circumstances such as the topography and locational features of the forest and land to be verified, the surrounding land, and the understanding room for users of land, etc., and comparing and balancing the Plaintiff’s necessary level of damages incurred to the Defendant, the owner of the land, and the extent of recognition of the right to passage over surrounding land should be determined (see, e.g., Supreme Court Decision 2002Da9202, May 31, 2002). The following circumstances acknowledged by the aforementioned evidence are as follows: ① The forest road of this case, including the land to be confirmed, is difficult to view that it is difficult for the Plaintiff to have access to the forest and land within the boundary of the Plaintiff to have access to the forest and land, and ② the land to have access to the forest and land can not be seen as having been constructed at least by the Defendant to have access to the forest and land for the purpose of farm management.

(3) Therefore, the plaintiff's claim for confirmation of the right of passage over surrounding land and the remaining claims premised thereon cannot be accepted.

4. Conclusion

Therefore, all of the designated parties' lawsuits are dismissed, and the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-tae