In cases where water can flow without passing through another person's adjacent land, whether a landowner has the right to use an electric cable installed on another's land or another person's land by analogy of the provisions of the Civil Act and the Sewerage Act concerning neighboring relations solely on the ground that the act of installing such facilities by himself/herself causes more costs than using another person's land, etc. (negative)

The provisions of the Civil Act, etc. concerning neighboring land for regulating the mutual use between neighboring land, as such, impose an obligation on the owner of the neighboring land to impose restrictions on the ownership. Therefore, the requirements of application cannot be relaxed or analogically applied, and adjustment of a land use relationship in excess of the scope of the above obligations pursuant to the provisions concerning neighboring land should be entrusted to the principle of private autonomy. Therefore, if a landowner fails to pass a certain land of a third party, he/she is unable to install necessary electric wires, etc. or requires excessive expenses, the other party has a duty to allow him/her to pass through and use his/her own land (see Article 218 of the Civil Act). In addition, a neighboring land owner may use a structure installed to communicate water of a third party (Article 227 of the Civil Act). However, it is difficult to view that a neighboring land owner’s right to use another person’s surrounding land or structure cannot be seen as a right to use another person’s surrounding land, such as a right to use another person’s land or structure, even if it does not pass through another person’s land.

Articles 218, 219, 227 of the Civil Act, Article 29 of the Sewerage Act

Gyeong Jingu Co., Ltd. (Attorneys Jeong Byung-chul et al., Counsel for the defendant-appellant)

Korea Electric Power Corporation (Attorney Park Il-tae, Counsel for defendant-appellant)

EKKK Co., Ltd. (Law Firm Pacific, Attorneys Kang Dong-chul et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2010Na6919 decided November 10, 2010

All appeals are dismissed. The costs of appeal between the Plaintiff and the Defendant CKKK are assessed against each party, and the costs of appeal between the Plaintiff and the Defendant Korea Electric Power Corporation are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. As to the assertion that the transmission line of this case is included in the purpose of the factory mortgage

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to have rejected the Plaintiff’s assertion that the effect of the instant right to collateral security extends to one-half of the transmission lines of this case, by citing the reasoning of the judgment of the court of first instance, on the ground that there is no evidence to prove that one-half of the instant right to collateral security was stated in the list of machinery and apparatus of this case. In so doing, it is not erroneous in the misapprehension of legal principles as to the scope of the mortgage or the principle of free evaluation

B. As to the assertion on the win-win relationship

(1) Since the provisions of the Civil Act, etc., concerning neighboring land for the coordination of mutual use between neighboring land, imposing on the owner of the adjacent land the obligation to impose restrictions on his/her ownership, such application requirement cannot be relaxed or inferredly applied, and the coordination of a land use relationship in excess of the scope of the human duty pursuant to the above-mentioned provisions should be entrusted to the principle of private autonomy.

Therefore, in a case where a certain landowner is unable to install necessary cables, etc. without passing through another’s land or requires excessive costs, the said other party is obligated to authorize the owner of adjoining land to use structures installed by the owner of adjoining land for the purpose of passing through his/her own land (see Article 218 of the Civil Act). In addition, it is recognized that the owner of adjoining land is not able to use inevitable facilities, such as electric wires, without passing through another’s land, or cannot pass through another’s land without passing through another’s land, or that there is a reasonable reason to make it impossible to communicate water without passing through another’s land. In a case where the owner of adjoining land is able to use facilities and communicate water without passing through another’s land, it is difficult to recognize the right to demand the owner of adjoining land to use such land or use facilities installed and owned by him/her, solely on the ground that there are circumstances such as the cost more than that of using another’

Therefore, in such a case as above, pursuant to Article 219 of the Civil Act concerning the right to passage over surrounding land and Article 227 of the Civil Act concerning the right to use a floating structure (owned structure) or Article 29 of the Sewerage Act, which provides for the use of another person's land or drainage system, it is difficult to deem that the right to use another person's land or other person's electric wires, etc. may be granted by analogy of the above provisions

(2) Examining the reasoning of the judgment of the court below in light of the above legal principles and records, the court below is just in rejecting the plaintiff's assertion that the plaintiff has a duty to use the transmission line of this case by analogical application of Articles 219 and 227 of the Civil Act and Article 29 of the Sewerage Act, since the use of the transmission line of this case already installed in the factory site, etc. of the defendant CK CK CKK Co., Ltd. (hereinafter "the defendant CK") in its neighboring areas is not generated, but is able to receive the user fee of the defendant CKKKKK, the owner of the transmission line of this case. Thus, the court below is just in rejecting the plaintiff's assertion that the plaintiff has a duty to use the transmission line of this case by analogical application of Articles 219 and 227 of the Civil Act and Article 29 of the Sewerage Act, as otherwise alleged in the ground of appeal.

2. As to the grounds of appeal by Defendant TKKK

A. If the exercise of the right can be deemed an abuse of the right, the purpose of the exercise of the right is to cause pain and damage to the other party, and there should be no benefit to the person who exercises the right, and the exercise of the right objectively cannot be seen as a violation of social order. Barring such cases, unless it falls under such cases, it cannot be viewed as an abuse of right solely on the ground that the other party suffers considerable damage than the benefit that the exercise of the right gains (see Supreme Court Decision 2002Da22083, 22090, Sept. 4, 2002).

B. Examining the reasoning of the judgment of the court below in light of the records, the court below is justified in holding that the plaintiff's removal claim of this case is not an abuse of right solely on the ground of the reasoning of the judgment of the court of first instance, and it is hard to see that the plaintiff's removal claim of this case was for the purpose of causing damage to the defendant CKKKkn and there is no interest to the plaintiff. It is hard to see that the removal claim of this case violates social order objectively. Thus, even if the plaintiff's removal claim of this case was accepted, even if the damage to the defendant CKkkknkkkn is considerably larger than the profit the plaintiff gets

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)