[1] The subject of confirmation of the right to passage over surrounding land and the standard for its determination (=when the pleading is closed)

[2] In a case where the right of passage over surrounding land is recognized, the criteria to determine the width and location of the passage and the limit of the exercise of the right of passage over surrounding land

[3] In a case where a tenement house was constructed on the land while a part of the adjoining land was used as a passage, the case reversing the judgment below recognizing a passage right to the surrounding land on the existing passage on the ground that opening of a separate passage route on another adjoining land, which can be controlled by a public road, can minimize infringement on the residential peace and safety in a apartment complex

[1] Unlike the area for passage, the passage of surrounding land does not always be fixed to a specific place, and the claim for confirmation of passage of surrounding land is finalized at the time of the closing of argument as to a parcel of land meeting the requirements stipulated in Article 219 of the Civil Code. Thus, if the owner of surrounding land changes the method of use of the land used for the existing passage according to the method, the owner of surrounding land has no choice but to move to another place where the damage is less than the damage is done for the owner of surrounding land.

[2] Since the right of passage over surrounding land is particularly recognized at the risk of damage to the owner of the land under way 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, the method of determining the width or location of the passage road shall be considered as less than the least damage to the owner of the land under way. In a specific case, the degree of necessity should be determined based on the geographical and locational shape and use relation of the land under the ordinary social norms, neighboring geographical state, understanding of the users of the adjoining land, and other all other circumstances. Meanwhile, in a specific case, the dwelling is a private and peaceful resting place of a person, which cannot be deemed the most important place in human life, and thus our Constitution guarantees the freedom of residence. Thus, in exercising the right of passage over surrounding land, the freedom of residence and peace and safety should not be infringed.

[3] In a case where a tenement house was constructed on the land while a part of the adjoining land was used as a passage, the case reversing the judgment of the court below recognizing the right to passage over the adjoining land of the existing passage road on the ground that the existing passage road in the apartment complex is a residential space for the entire residents of the apartment house, and even if there are other adjoining land that can be generally viewed as a contribution, it can minimize the violation of the peace and safety of residence in the apartment complex, even if the cost of opening a separate passage,

[1] Article 219 of the Civil Act / [2] Article 219 of the Civil Act, Article 16 of the Constitution / [3] Article 219 of the Civil Act, Article 16 of the Constitution

[1] [2] Supreme Court Decision 88Meu10739, 10746 Decided May 23, 1989 (Gong1989, 986), Supreme Court Decision 92Da30528 Decided December 22, 1992 (Gong1993Sang, 571) / [2] Supreme Court Decision 2002Da9202 Decided May 31, 2002 (Gong2002Ha, 1537), Supreme Court Decision 2003Da18661 Decided July 14, 2005 (Gong2005Ha, 1308), Supreme Court Decision 2005Da70144 Decided June 22, 2006 (Gong2006Ha, 1537)

Plaintiff (Law Firm Insan, Attorneys Kim Jong-sub et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Tae-hoon, Counsel for defendant-appellant)

Incheon District Court Decision 2008Na528, 535, 542 Decided September 11, 2008

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

1. The right of passage over surrounding land is not always fixed to a specific place, unlike the right of passage over surrounding land, and the right of passage over surrounding land is determined at the time of closing argument as a land meeting the requirements stipulated in Article 219 of the Civil Act. Thus, when the owner of surrounding land changes the method of use of land which is already used as an existing passage in accordance with the method of use, the owner of surrounding land has no choice but to move it to another place where the damage is less than the damage to the owner of surrounding land (see Supreme Court Decision 88Meu10739, 10746, May 23, 1989).

In addition, since the right of passage over surrounding land is particularly recognized to be at the risk of damage to the owner of the land under way 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, the method of determining the width or location of the passage road shall be considered to less than the least damage to the owner of the land under way. In a specific case, the degree of necessity should be determined based on the geographical, locational and utilization of the land under the ordinary social norms, neighboring geographical state, understanding of the users of the adjoining land, and other all other circumstances according to the specific case. Meanwhile, the dwelling is a private and peaceful resting place of a person, which cannot be considered as the most important place in human life, and the Constitution guarantees the freedom of residence under our Constitution. In exercising the right of passage over surrounding land, it shall not infringe upon the freedom of residence, peace and safety (see Supreme Court Decision 2003Da18661, Jul. 14, 2005, etc.).

2. Based on its adopted evidence, the lower court: (a) owned the land of this case from October 29, 1996 to Kimpo-si (Dong, lot number, land category, and size 1 omitted) (hereinafter “instant land”); and (b) used the adjacent part of the same Dong (number, land category, and size 2 omitted) with a width of 3 meters as a passage through the road among the land of this case (hereinafter “instant dispute land”); (c) around 1999, at least 30-5, and 6 land adjacent thereto, two rows were constructed on the land of this case; and (d) the Plaintiff and the designated parties cultivated the said land by entering and leaving the said land of this case via the said part of the said “B”; and (e) the Defendant and the designated parties installed the said part of the instant land with a width of 1 to be used by the residents at the entrance and exit of this case; (e) the part of the instant land to be used by the residents during the construction of the said two rows and the part to be used as the above one-one-one-one-one-year passage of the instant land.

Furthermore, based on the above recognition facts, the court below held that it is reasonable to recognize the Plaintiff’s right to passage of the above portion of the land, considering the following: (a) the Plaintiff used the above portion as the passage passage for a long time; and (b) the Defendant and the designated parties, etc. also impliedly interfered with the Plaintiff’s passage; (b) the removal of the said portion as the entrance of the said apartment complex constitutes the entrance of the said apartment complex; (c) the area of the above part of the “B” itself or the water level room, warehouse, and play lot is considerably smaller than the area of the entire site of the said apartment complex; (d) the sewage manager used by the above apartment house is installed under the ground of the instant land; and (e) the portion of the “B” is installed in the instant apartment house; and (e) the area of the land to be constructed on the road is much wider than the above part of the “B”; and (e) the Plaintiff’s use it as the passage along the Defendant and the designated parties, thereby seriously impairing the safety and peace of the Defendant and the designated parties.

3. However, we cannot accept the above determination by the court below in light of the following points.

First of all, as seen earlier, the claim for confirmation of the right to passage over surrounding land is confirmed to be a parcel of land meeting the requirements stipulated in Article 219 of the Civil Act at the time of the closing of argument, and therefore, the plaintiff has used the above "B" part for a long time as the passage of the plaintiff, and the defendant and the designated parties have silent the passage of the plaintiff, or even if the sewage manager used by the residents of the above apartment house is installed under the ground of the land in this case, such circumstance shall not be considered significantly in judging

Furthermore, considering the facts acknowledged by the court below in light of the aforementioned legal principles, although the above portion is being used as the entrance of the above apartment complex, it is a residential space for all residents of the apartment complex as a site in the apartment house, and the residents of the apartment house have the right to enjoy peace and safety as a residential space in the apartment complex, and the above portion of the "B" can affect residents' use of warehouses, playgrounds, etc. with the passage of the apartment house complex as above. Thus, it cannot be readily concluded that it is the place and method with the lowest damage to the residents of the apartment house for the passage of the land in this case.

In addition, according to the records, the above 19-11 land is proceeding only at the time of the closing of argument in the court below, and no facilities are installed. Thus, if the land in this case comes to be contributed through the above "F" part at the edge of the above 19-11 land from the land in this case through the above "F" part, it is necessary for the plaintiff to open a separate passage, while the plaintiff as the owner of the above 19-11 land should allow the plaintiff's passage. However, the above 19-11 land in the above multi-family housing complex can be minimized.

Therefore, the lower court should have deliberated on the expenses incurred in opening a passage to the above part of the “F,” while keeping in mind the peace and safety of the residence of the residents of tenement houses, the specific status of the said 19-11 land, the use plan, and the damages incurred by the said 19-11 owners due to the establishment of a passage to the said part of the “F,” and should have determined whether to recognize a passage to the surrounding part of the “B,” by considering all the remaining circumstances.

Nevertheless, without deliberating and deciding on the above point, the court below did not examine and decide on the above point, and merely based on its stated reasoning, it constitutes a method in which the plaintiff's access to the above part of "B," which is already used by the defendant and the designated parties for passage, is the least method to cause damage to the plaintiff, the defendant, and the designated parties, and affirmed the judgment of the court of first instance that recognized the right to passage over the surrounding part of "B," and ordered the removal and prohibition of disturbance of the above wall. Thus, the court below erred by misapprehending the legal principles on the right to passage over surrounding land, which led

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)