(영문) 수원지방법원 안양지원 2017.1.25. 2016카합10136 결정

The debtor shall not obstruct the creditor and his/her employees (including employees of service companies), and the vehicle from using a part of 592 square meters (hereinafter referred to as "traffic route in this case"), which is set up in mountain 5,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

Reasons

1. Summary of creditor's assertion

The creditor has used the passage route of this case, the only passage to the water supply storage facility (hereinafter referred to as the "water supply storage facility") located in the 2-5 forest (hereinafter referred to as the "forest of this case") at the center of the city of 2,000, the city of 2-5 forest (hereinafter referred to as the "forest of this case"), which is owned by the creditor, for about 35 years. In recent years, the debtor has installed the pole and the steel fence on the passage of this case and has the creditor's passage. The creditor has the right of passage over surrounding land as provided in Article 219 of the Civil Code against the passage of this case. Even if it is not so, the debtor's interference with the use of the passage of this case constitutes an abuse of right, and thus the creditor

2. Determination

A. Whether the right of passage over the surrounding land is recognized

1) Article 219 of the Civil Act provides for the right to passage over surrounding land and compensation for damages therefrom by providing that “If a piece of land has no passage necessary for the use of the land to a public road without passing over or passing over the surrounding land, the owner of the land may pass over the surrounding land if it is impossible or excessive expenses are required to reach the public road without passing over or passing over the surrounding land.” However, the owner of the surrounding land shall select a place and method which is less than the one in which the damage is caused. The person having the right to passage over the surrounding land shall compensate for the damage of the owner of the land.” However, such right to passage over surrounding land is particularly recognized to be at the risk of causing the damage to the owner of the right to passage over the land for the public interest, which is the use of the land without a passage necessary for its use. In determining its width or location, the method of using the land must be considered to be the lowest degree of damage to the owner of the right to passage over the land. In a specific case, whether it can be considered to be necessary should be determined within the extent necessary.

2) In light of the above legal principles, as to whether a creditor's right to passage over surrounding land under Article 219 of the Civil Act is recognized, the following circumstances, i.e., ① the water supply storage facilities and the land owned by the creditor and the land owned by the creditor, are located in the land owned by the debtor, and the passage over surrounding land is part of the only passage from the water supply storage facilities located on the land owned by the creditor to the road 64-3 (hereinafter referred to as "the road of this case"). The debtor currently has proved that the passage over the road of this case was obstructed by installing the pole and the steel fence on the road of this case. However, in light of the overall purport of the records of this case, it seems possible for the creditor to open the passage over the surrounding land as the passage over the above forest of this case without the debtor's consent.

B. Whether it constitutes abuse of rights

1) If a landowner’s act of installing a structure on his/her own land constitutes an abuse of rights in relation to the owner of a neighboring building. Accordingly, if a result of a substantial infringement on the use and profit-making of a neighboring building by the owner of the building, the owner of the neighboring building may seek removal of the structure against the landowner by exercising the right to claim removal of interference based on the ownership of the building (see, e.g., Supreme Court Decision 2010Da59783, Dec. 9, 2010). However, if the exercise of the right is intended to constitute an abuse of the right, subjectively, the purpose of the exercise of the right is to inflict pain on the other party and inflict loss on the other party, and the exercise of the right must be deemed to be in violation of social order, and objectively, the exercise of the right should be deemed to be in violation of the social order. Although it does not fall under such case, even if the other party’s loss is considerably higher than the profit that the owner has gained by exercising the right, such circumstance alone cannot be deemed abuse of rights (see, etc.

2) In light of the above legal principles, even if the evidence submitted by the creditor alone prevents the obligor from using the passage of this case by installing a pole and a steel fence on the passage of this case, such an act does not constitute an abuse of rights, since it is difficult to view that the obligor’s act is an owner of the passage of this case, and it does not constitute an abuse of rights.

3. Conclusion

Therefore, the creditor's motion of this case is dismissed as it is without merit. It is so decided as per Disposition.

January 25, 2017