A. Scope of application of Article 220 of the Civil Act on the right of free passage

(b) Matters to be considered in determining the width, location, etc. of passage roads based on the right of passage over surrounding land by the owner of the plot of land, and whether there exists a right of passage over surrounding land, consistent with the width, etc. of the road as provided by the Building Act, on the ground that the Building Act provides for the restriction of width, etc. concerning roads in connection with construction (

(a) The provisions of Article 220 of the Civil Code on the right of free passage shall not apply to a specific successor of the land or land over which the direct subdivision or partial assignment of the land is applied only between the parties to the transfer and which is circulated;

B. The right of passage over surrounding land as stipulated under Articles 219 and 220 of the Civil Act intends to be specifically recognized for the sake of passage over the road by the owner of the land demarcated at the risk of causing damage to the owner of the land exposed to the road. Thus, in determining the width, location, etc. of the road, rather than for the situation that the owner of the land caught may not extend or rebuild the road under the Building Act, the method of causing less damage to the owner of the land exposed to the road should be considered. Even if there are restrictions on the width, etc. of the road in relation to the construction under the Building Act, it is merely an administrative law that requires a road within the same scope at the time of new construction, extension, or alteration of the building, and it cannot be said that the said provision alone is a reflective interest to the owner of the land, and thus, the right of passage over surrounding land, consistent with the width or area of the road as stipulated under the Building Act.

(b) Article 220 of the Civil Act; Article 219 of the Civil Act; Article 2 subparag. 15 of the Building Act; Article 62(1) of the Enforcement Decree of the Building Act;

A. Supreme Court Decision 84Meu921, 922 delivered on February 8, 1985 (Gong1985, 418). B. Supreme Court Decision 90Meu1091, 10107 delivered on August 28, 1990 (Gong1990, 2021). Supreme Court Decision 88Meu10739, 10746 delivered on May 23, 1989 (Gong1989, 986) (Gong1989, 1284). Supreme Court Decision 91Da961, 9978 delivered on May 28, 1991 (Gong191, 1766)

[Defendant-Appellant] Hong-hwan et al., Counsel for defendant-appellant-appellant

Defendant Kim-chul, Counsel for the defendant-appellant

Supreme Court Decision 88Meu9364 Decided July 25, 1989

Daegu District Court Decision 89Na7359 delivered on September 27, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

With respect to No. 1:

The theory of the lawsuit is clear that the land of this case is a road constructed to be used for the passage of the site on which the plaintiff's house is located, and the defendant has already been aware that the land of this case was already constructed for the same purpose, and at the time of the successful bid of the neighboring land owned by the non-party 1, the defendant is obligated to allow the plaintiff to use the land of this case as the passage of the previous land, and the plaintiff's right to access to all or part of the land of this case cannot be exercised exclusively, and therefore the plaintiff's right to access to all of the land of this case shall be continuously recognized. However, the court below rejected the plaintiff's claim on the ground that the above ground is a form logic that the specific successor of the land

However, it cannot be deemed that the Plaintiff consented to the use of the entire land of this case as a passage through a successful bid at the time of the successful bid for the neighboring land owned by Nonparty 1. Ultimately, the above passage right claimed by the Plaintiff should be deemed to be the passage right in a case where any land which cannot be contributed due to a division or a partial transfer of land as provided in Article 220 of the Civil Act, and Article 220 of the Civil Act on the right to free passage right applies only to a person directly divided or a part between the parties to the transfer, and does not apply to a specific successor to the land or the land seized or the land towed (see, e.g., Supreme Court Decisions 90Meu1091, 10107, Aug. 28, 1990; 84Meu921, 9222, Feb. 8, 1985).

According to the facts duly established by the court below, although the land of this case claimed by the plaintiff as the land owner was originally owned by Nonparty 1, the land owner of this case, it is clear that the plaintiff, the land owner of this case, was a specific successor of the land subject to passage, and it cannot be asserted that all of the land of this case was used as the passage of the land owned by the plaintiff as the land owner, since it was partitioned around February 1975 and the defendant auctioned it on February 20, 1978.

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.

With respect to the second ground:

Around 1975, Non-party 1 divided the land of this case into approximately 220.8 square meters, and the land of this case was divided into three meters from the road width abutting on the public road according to the Building Act, which was enforced at the time when it was intended to provide a road to the public road for the owners of housing on the site that became impossible to access the public road due to the above division. Thus, the land of this case is a road constructed for the prevention of fire and disaster in a building in a dead-end block under the Building Act, which is a mandatory law, and for the safety of residents, the land of this case has the anti-private interest or the right of passage. If three meters from the original road of this case is narrow to 1.5 meters from the original road of this case as at the time of the original adjudication, the plaintiff, the owner of a building site within the aggregate trees, cannot extend or rebuild the house, or repair it, and the plaintiff's right of passage, which is only the plaintiff's right of passage or use, but also the plaintiff's right of passage.

Since the right of passage over surrounding land stipulated in Articles 219 and 220 of the Civil Act intends to be particularly recognized for the sake of passage over the road by the owner of the land at the risk of causing damage to the owner of the land under the upper relationship, rather than for the circumstance that the owner of the land at the risk of causing damage to the owner of the land under the road may not extend or rebuild the road in determining the width, location, etc., the method of causing the least damage to the owner of the land under the Building Act should be considered.

In addition, even if there are restrictions on the width of roads in relation to the construction of a building, such as theory, it is only an administrative law that requires a road within such scope at the time of new construction of a building or permission for the extension or reconstruction of a building, and only the above regulations alone do not necessarily lead to the plaintiff's counter-private interest that has the right of passage over surrounding land consistent with the width or size of the road as provided by the Building Act, or that the defendant, a specific successor to surrounding land, who is a specific successor to the surrounding land, can not succeed

The court below did not specifically state the width of the passage to the surrounding land of this case, but held that the width of the passage exit should be maintained at a level of 150 centimeters, which is the middle width of the passage, for the passage of people to lead a daily life in the site and building owned by the plaintiff, based on the above opinion, in light of the nature of the right to passage over surrounding land in this case (the purport of the judgment of the case remanded this case is that it is the purport of the judgment of the case remanded this case), and there is no error of misunderstanding the legal principles of the Building Act, such as the theory of lawsuit, or omission of judgment. It is without merit.

Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)