[1] The case where the person who has the right to passage over the surrounding land may claim the confirmation of the right to passage and the prohibition of interference against the third party other than the owner of the right to

[2] If a right to passage over surrounding land is recognized under Article 219 of the Civil Code, matters to be considered in determining the width and location of the passage

[3] The case reversing the judgment of the court below that recognized the right of passage over surrounding the above existing passage road on the ground that it would minimize the infringement of residential peace and safety in the apartment complex, as long as the existing passage road in the apartment complex is used as a vehicle traffic because it is a whole residential space for the apartment residents, since there is an adjacent green belt that can be controlled by the contribution, it would contribute to the construction of a road through an adjacent green belt even if there is cost of passage.

[1] Ordinary disputes over the right of passage over surrounding land arise between the person holding the right of passage and the owner of the right of passage. However, if a third party, other than the owner of the right of passage, denies the right of passage in a certain position or interest and interferes with the exercise of such right, it may be an effective and appropriate means to preserve the status or status of the person holding the right of passage.

[2] The right of passage over surrounding land, as stipulated in Article 219 of the Civil Act, is particularly recognized to be at the risk of causing damage to the owner of the right of passage for the public interest, which is the use of land without a passage required for its use between the public interest and the public interest. Thus, in determining the width or location of the passage route, the method with less damage to the owner of the right of passage shall be considered. The degree of necessity should be determined based on the geographical features, locational shape and utilization relation of the land between the parties in question, neighboring geographical features, surrounding geographical features, and utilization relation, and understanding of the users of the adjoining land,

[3] The case reversing the judgment of the court below that recognized the right of passage over surrounding the above existing passage road on the ground that it would minimize the infringement of residential peace and safety in the apartment complex, as long as the existing passage road in the apartment complex is used as a vehicle traffic because it is a whole residential space for the apartment residents, since there is an adjacent green belt that can be controlled by the contribution, it would contribute to the construction of a road through an adjacent green belt even if there is cost of passage.

[1] Article 219 of the Civil Act / [2] Article 219 of the Civil Act / [3] Article 219 of the Civil Act, Article 10 of the Constitution

[2] Supreme Court Decision 91Da32251 delivered on April 24, 1992 (Gong1992, 1676), Supreme Court Decision 94Da50656 delivered on February 3, 1995 (Gong1995Sang, 1155), Supreme Court Decision 96Da10171 delivered on May 14, 1996 (Gong1996Ha, 1860), Supreme Court Decision 2002Da9202 delivered on May 31, 2002 (Gong2002Ha, 1537)

Plaintiff (Appointed Party) 1

Seochoyang Apartment Apartment Residents' Representative Council (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na2203 delivered on February 27, 2003

The part of the lower judgment against the Defendant regarding the confirmation of the right to passage over surrounding land and the claim for the prohibition of interference is reversed, and that part of the case is remanded to Seoul High Court. The Plaintiff (Appointed Party)’s appeal

1. As to the appeal by the Plaintiff (Appointed Party)

According to the reasoning of the first instance judgment cited by the lower court, the lower court determined that the part of the fixed number of the Plaintiff (Appointed Party) and Plaintiff 2 (hereinafter referred to as “Plaintiffs”) in Seocho-gu Seoul, Seoul ( Address 1 omitted), which was owned by the Plaintiff (hereinafter referred to as “the Plaintiff”), was created at the time of construction of Hanyang apartment, and that the Defendant was only managed along with the green space in another apartment complex on the ground of the relation located inside the apartment boundary wall, and further, there was insufficient evidence to deem that the Defendant occupied it.

In light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no violation of law as otherwise alleged in the ground of appeal.

Furthermore, in calculating unjust enrichment on the remainder of the parking lot of this case, the plaintiffs are dissatisfied with this issue as the remaining grounds of appeal, which are erroneous that the court below erred by applying 2% expected interest rate to the estimated price. However, according to the records and the reasoning of the judgment of the court of first instance cited by the court below, it is obvious that the expected interest rate applied by the court of first instance is 4%.

2. As to the defendant's appeal

A. As to the plaintiffs' assertion of right to passage over surrounding land, the court below rejected the above safety defense on the ground that the defendant's assertion of right to passage over surrounding land was against the defendant who is responsible for the management of the surrounding apartment site on the premise that the defendant can assert the right to passage over surrounding land against the defendant who is responsible for the management of the surrounding apartment site, on the premise that he did not have external power to represent the ownership of the above site because he was not the owner of the land in Seocho-gu, Seoul ( Address 2 omitted), but the representative of each building elected by the occupants for the management of the apartment complex, and that he did not have external power to represent the ownership of the above site.

In ordinary, disputes over the right of passage over surrounding land arise between the person holding the right of passage and the owner of the right of passage, but if a third party other than the owner of the right of passage denies the right of passage in a specific position or interest and interferes with the exercise of such right, it can be an effective and appropriate means to preserve the status or right of passage.

According to the records, the defendant is a non-corporate body as a council of occupants' representatives established under Article 38 (1) of the former Housing Construction Promotion Act (amended by the Housing Act No. 6916 of May 29, 2003) and Article 10 (1) of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 18146 of Nov. 29, 2003) which consist of representatives elected in proportion to the number of households of each building for the purpose of managing apartment and auxiliary facilities within the complex by the occupants and users of Seocho-do apartment, and during that period, the defendant mobilized the employees of the management office of the plaintiff to use the land of this case to store fences around the site of this case and the third apartment site of this case, which are the land located around the site of this case, and there is a way to deny the plaintiffs' surrounding right of passage, such as prohibiting passage through the main apartment site of this case, and to prevent the plaintiffs from exercising their surrounding right of passage as a means to preserve their surrounding land and right of right of passage.

Even if the reasons stated by the court below are somewhat insufficient, the conclusion that rejected the defendant's main defense is just, and there is no error of law that affected the conclusion of the judgment.

B. In full view of the admitted evidence, the court below determined as follows: (a) the site of this case is a blind site with no length leading to a public road, and it is impossible to grant a building permit under the Building Act and no public road; (b) the road is a road with a width of at least 35 meters; (c) the road should secure a road with a width of at least 6 meters if the length of the road is at least 35 meters; and (d) the above ( Address 2 omitted) site adjacent to the site of this case, is an existing passage in the apartment complex (hereinafter referred to as the "road" in this case), as alleged by the plaintiffs, and if the court below recognizes the right of passage over surrounding land at that site, the plaintiffs can use the road as a passage in the front apartment complex without additional cost; and (d) the land of this case is a third apartment site with a width of at least 3 meters, including the land of this case, which is the lowest passage through the apartment site or the land of this case, and thus, the plaintiffs can use it as a part of the building site of this case.

However, it is difficult to accept such judgment of the court below for the following reasons.

The right of passage over surrounding land stipulated in Article 219 of the Civil Act is particularly recognized at the risk of causing damage to the owner of the land under way for the public interest, which is the use of land without a passage required for its original purpose between the public interest and the public interest. Thus, in determining the width or location of the passage route, the method which less causes damage to the owner of the land under way should be considered. The degree of necessity should be determined based on the topographical, locational and utilization relation of the land under ordinary social norms, adjacent geographical state, neighboring geographic state, understanding loss of the users of the land, and all other circumstances (see, e.g., Supreme Court Decision 2002Da9202, May 31, 2002). Meanwhile, in a case where a residence is a private living space of a person and a peaceful resting place, and thus the Constitution guarantees the freedom of residence under our Constitution as it is not the most important place in human life, and in exercising the right of passage over surrounding land, the freedom and safety of residence should not be infringed (see, e.g., Supreme Court Decision 236.

However, according to the records, the passage of this case is being used as a vehicle traffic, but it is not easy for the plaintiffs to readily conclude that the passage of this case is used as a way to cause damage to the apartment residents, just because the passage of this case is currently being used as a vehicle traffic. Furthermore, according to the records, the site of this case is located at the end of the southwest apartment complex, which is separated from the outside, and it is the entire residential space of the apartment residents in the Seocho Hanyang apartment complex. Thus, the residents of Seocho apartment complex have the right to enjoy the peace and safety as a residential space in the apartment complex including the passage of this case. In particular, the passage of this case is used as a 261m long as the passage of this case is in the apartment complex in the form of 'creamble' form. Thus, the passage of this case can be seen as being used as a separate residential space for the purpose of minimizing the remaining part of the apartment complex as a green space, and there is no room to see that the land is being used as a green space.

Therefore, the lower court should have deliberated on whether it is possible to pass through the road from the site of this case to the public with a contribution, in mind of the peace and safety of the apartment residents’ dwelling, and the amount of expenses required and the degree of the burden to be borne by the occupants of the Seocho-west apartment, and should have determined whether to grant the right of passage to the surrounding land by considering all the remaining circumstances.

Nevertheless, the court below decided that the passage of the road of this case already established without deliberation and confirmation as to the above point is the least method for damages to the plaintiffs and apartment residents, and thus recognized the right of passage over surrounding the road of this case and ordered the prohibition of interference. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the right of passage over surrounding land, and it is clear that such illegality affected the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the confirmation of the right to passage over surrounding land and the claim for the prohibition of obstruction shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The appeal by the plaintiff (Appointed Party) shall be dismissed. It is so decided as per Disposition

Justices Yoon Jae-sik (Presiding Justice)