The requirements for acquiring servitude pursuant to Article 294 of the Civil Code.

The requirements for acquiring servitude pursuant to Article 294 of the Civil Code.

Article 294 of the Civil Act, Article 245 of the Civil Act

Plaintiff

Defendant 1 and five others

Seoul High Court Decision 69Na1960, 1961 decided April 3, 1970

The part of the original judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal No. 2 by the Plaintiff’s attorney are examined.

According to the reasoning of the judgment of the court below, the court below recognized the fact that the defendants, the owners of neighboring sites, used the building site as a passage connected to Sejong 5-Ga for twenty years from May 20, 1942, which was incorporated into the introduction established by the Department of Shipbuilding, and used continuously and explicitly from May 20, 1962 to May 20, as a passage connected to Sejong 5-Ga without the plaintiff's objection. Thus, the defendants, the owners of dominant land, as the owners of dominant estate, were entitled to claim the registration of the establishment of the passage area, upon the completion of the acquisition of the acquisition of the passage area over twenty (20) years.

However, the provisions of Article 245 of the Civil Act shall apply mutatis mutandis only to cases where the act that can be recognized as having the servitude is continued and expressed in order to acquire servitude pursuant to Article 294 of the Civil Act. Thus, the provisions of Article 245 of the Civil Act shall apply mutatis mutandis only to cases where the owner of the dominant land has passed over the land of another person for twenty years. The situation where the owner of the dominant estate opened a passage on the dominant estate and uses it on the dominant estate at the time, and continues to have continued the period prescribed in Article 245 of the Civil Act (see Supreme Court Decision 65Da2305,2306 delivered on September 6, 196). Therefore, the above reasoning of the original judgment cannot be deemed to have acquired the right to passage over the dominant land of the Plaintiff, which is the dominant estate, even though the Defendants cannot be deemed to have acquired the right to passage over the dominant land, but the lower court did not err by misapprehending the legal doctrine on the acquisition of servitude or by failing to exhaust all necessary deliberation.

Therefore, by the assent of all participating judges, the part of the Plaintiff’s failure in the original judgment is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition.

Judge Han-dong (Presiding Judge) of the Supreme Court