Whether a passage around another place is more convenient than the existing passage (negative)

Since the right to passage over the surrounding land is recognized only when there is no passage between the ownership and the public road, and there is no way necessary for the use of the surrounding land, the right to passage over the surrounding land may not be recognized only on the ground that there is a passage necessary for the use of the land, and it is more convenient than

Article 219 of the Civil Act

Supreme Court Decision 75Da2338 Delivered on May 11, 1976

Applicant

Respondent

Seoul Civil District Court Decision 81Na1385 delivered on December 11, 1981

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

We examine the applicant's grounds of appeal.

1. The right of passage over surrounding land as stipulated in Article 219 of the Civil Code is recognized only when there is no passage necessary for the use of the land between the owned land and the public road, so if there is already a passage necessary for the use of the land, the right of passage over surrounding land cannot be recognized solely on the ground that it is more convenient to use this passage.

이 사건에서 원심의 현장검증결과에 보면, 피신청인 소유대지는 피신청인이 통행권을 주장하는 신청인 소유토지 위의 이 사건 계쟁통로부분(검증조서 첨부 도면표시 B부분)외에도 피신청인 가옥 뒤의 광,부엌 등이 부설된 공지(위 도면표시 ㉵부분)을 통하여 폭 약1.5미터의 골목길을 거쳐 공로로 연결되어 있음이 인정되는바, 신청인은 원심 제3차 변론기일에 진술한 1981.11.19자 준비서면에서 위 공지는 피신청인 소유대지의 일부이고 위 공지와 골목길 사이에 설치된 출입문도 피신청인이 설치한 통로출입문이라고 주장하면서 그 입증을 위한 검증감정 신청서를 위 준비서면에 첨부하고 있음이 기록상 명백하다.

If the above public notice section and entrance are owned by the respondent as alleged by the petitioner, it is more than 1.5 meters in width of the frame connected to the above public notice, and even if the above public notice is located on the back of the house of the respondent and it is difficult for the respondent to have access to the house due to the light and kitchen attached to the respondent, it shall be deemed that there is no right to claim access to the land in the dispute of this case owned by the applicant, which is the land of the other party, for such reason.

However, if the above open space or entrance is not owned by the respondent, but is a part of the closed house and its entrance of the neighboring house (referred to as the Respondent's argument to this effect in the preparatory documents dated November 24, 1981 submitted after the closing of argument in the original trial). The Respondent can claim the right of passage over the part of the dispute of the applicant's land abutting on the house owned by the Respondent rather than through other person's closing party and gate.

2. Therefore, the court below should have deliberated on the right to be preserved by clarifying whether or not the applicant applied for evidence attached to the above legal brief of November 19, 1981, and should have deliberated on the right to be preserved by urging the applicant to prove the above facts. However, the court below's conclusion that the above measures should not be taken, and even if the above part of the public notice is used as the passage through the public notice as the passage of the public notice from the reasoning of the judgment, it is a space of 90 centimeters. Thus, the court below's decision that the public notice part cannot be viewed as the respondent's ownership, and there is an error of law by recognizing facts without any evidence without sufficient deliberation, and it is reasonable to discuss this point.

3. The judgment of the court below is reversed on the grounds of above, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)