[1] In a case where a local government installed a retaining wall around the surrounding area while conducting a packing work in accordance with an adjustment formed between the landowner Gap and the owner Eul of the surrounding area upon completion of a registration for establishment of an easement, and part of the area was infringed upon and sought a provisional disposition prohibiting removal of the retaining wall against the part, the case holding that the above provisional disposition application does not have the right to prevent removal of the retaining wall against the part over the servitude

[2] In a case where the owner of a certain parcel of land obtains an easement from the owner of a surrounding parcel of land to secure a passage leading to a contribution, or leases the passage, whether the right to passage over surrounding parcel of land is recognized (negative in principle)

[3] The case holding that since the conciliation is established between the landowner Gap and the owner Eul of the surrounding land, including "a confirmation that he has a right to passage over the surrounding land to a certain extent of the surrounding land", the scope of right to passage over the surrounding land has been set within the scope recognized by the above conciliation, and Gap cannot be deemed to have a right to passage over the surrounding land beyond the scope recognized by the above conciliation

[1] In a case where Gap and Eul of the neighboring land owner filed a provisional disposition prohibiting removal of the retaining wall on the part of the land, on the grounds that Gap had no right to prevent removal of the retaining wall on the part of the land affected by the easements, and thus, the above provisional disposition application does not have the right to be preserved. The above provisional disposition application is not a right to prevent removal of the retaining wall on the part of the land affected by the easements, since Gap and Eul had no right to prevent removal of the retaining wall on the part of the land affected by the easements

[2] If the owner of a certain parcel of land obtains an easement from the owner of a surrounding parcel of land in order to secure a passage leading to a contribution, or leases the passage, the right to passage over surrounding parcel of land is not recognized except in extremely exceptional cases where the passage cannot be used as a passage necessary for the purpose of the land.

[3] The case holding that since adjustment, including "a confirmation that a person has a right to passage over the surrounding land" between the landowner Gap and the owner Eul of the surrounding land, the scope of the right to passage over the surrounding land has been set, Gap has a right to passage over the surrounding land within the scope recognized by the above adjustment, and since the right to passage over the surrounding land has been set equally, Gap cannot be deemed to have a right to passage over the surrounding land beyond the scope recognized by the above adjustment, since the right to passage over the surrounding land is established

[1] Articles 214, 219, 291, and 301 of the Civil Act; Article 300 of the Civil Execution Act / [2] Articles 219, 291, and 618 of the Civil Act / [3] Articles 219 and 291 of the Civil Act

Applicant

Bogi-gun (Liwon Law Firm, Attorneys Kim Hyeong-type, Counsel for the defendant-appellant)

1. The motion of this case is dismissed.

2. The litigation costs shall be borne by the applicant;

The respondent shall not remove a retaining wall installed in the part connected with each of the above points in the order of priority among the indication of drawings in the attached Form No. 1, and No. 2, the retaining wall installed in the part connected with each of the above points, among the 248-3 2,631 m3, gr., the Respondent, which is the Council of Chungcheongnam-do. The respondent shall not install a retaining wall in the order of priority among the above land.

1. Facts of recognition;

According to the overall purport of the record and examination of this case, the following facts are substantiated.

(a) Current status of land possession;

(1) The applicant is operating a “○ farm” in 23,00,000,000 m23,000,000 m23,000,000,000, in the name of the administrative district on October 1, 2007. The same shall apply to the foregoing m23,000 m23,000 m23,000,000,000,000,000,000,000 m23,000,000,000,000 m2,000,000,000,000,000 m2,00,000,000,000,000,000 m2,00,000,000.

(2) Nonparty 1 owns 248-3,631 square meters (hereinafter “the instant land”) in Yando-gun, Chungcheongnam-do-gun, Chungcheongnam-do-do-gun, and 248-1,172 square meters in lux, and 1,336 square meters in lux, 248-2, the foregoing luxio 248-2, the foregoing luxio 248-1,172 square meters in the instant land and the foregoing luxio 248-1,172 square meters in luxio, and 248-2,336 square meters in luxio, etc. (hereinafter “the instant land”).

B. Formation of mediation between the petitioner and the non-party 1

(1) Around May 2005, the respondent performed the confirmation and packaging construction work on the land of grluri, such as the instant land. The applicant tried to secure a passage through the instant land, etc. from the said construction to the ○ farm.

(2) However, Nonparty 1 did not consent to use the instant land, etc.; on June 22, 2006, Nonparty 1 and Nonparty 2 (hereinafter “ Nonparty 1 et al.”) filed a lawsuit claiming damages against Nonparty 1 et al. on the ground that Nonparty 1 interfered with the package construction on the road.

(3) On May 15, 2007, the applicant and Nonparty 1, etc. mediated the following contents in the above lawsuit:

① Nonparty 1, etc. verified that the applicant has the right to passage over the surrounding land for the land indicated in the separate sheet (hereinafter “instant passage”) for the sake of 23,00 m3,509 m3 and 10-1,343 m3 m3,000 m3,000 m3,000 m3 (hereinafter “○○ farm land”), which is the body of the Chungcheongnam-do Association, Chungcheongnam-do, Chungcheongnam-do, and the applicant does not perform any act interfering with the passage of the instant passage, and actively cooperate to the applicant so that the applicant can perform packing works.

② Nonparty 1 shall implement the procedure for the registration of the establishment of servitude, which is the “purpose: passage, period: permanent, temporary, and permanent: ○○ farm” with respect to the passage of this case to the applicant.

③ The applicant shall pay KRW 15 million to Nonparty 1, and the applicant shall implement the procedure for the registration of ownership transfer on the ground of reconciliation with respect to the amount of 290 square meters in the name of the applicant’s wife Nonparty 3, Chungcheongnam-do, Chungcheongnam-gun, the number of Myeongdong-gun, the registration of ownership transfer of which is registered under Nonparty 3’s name.

④ The applicant shall actively cooperate with Nonparty 1, etc. in order not to damage adjacent land owned by others due to the use of the road in this case, such as establishing a boundary margin on the outer side of the road in this case.

(5) The obligations under the above paragraphs (2) and (3), (4) shall be concurrently fulfilled.

(4) In the above conciliation, the same place is equally identical to the passage of this case where the right of easement and the right of passage over surrounding land are recognized, and the width is about four meters.

(5) On August 27, 2007, the applicant completed the registration of the establishment of a servitude for the purpose of passage on the instant land, etc., which is a servient land for ○○ farm land, with the scope of “602 square meters on the south and Seo-west,” which is the dominant land.

(c) Installation works of retaining walls by the respondent;

(1) The respondent later performed the packing construction of the road, and accordingly, the road currently constructed on the instant land is different from the part on the applicant’s easement or the right to passage over surrounding land.

(2) Since the above road packing work, there was a sloped surface on the land of this case, and the respondent completed the construction of the retaining wall on the south side of the road of this case around the end of 2007. The retaining wall of this case was set up and installed at souther than the applicant’s easement or the boundary of the right to passage over surrounding land. However, the retaining wall installed in the part connecting each point in sequence ①, and ②, the retaining wall installed in the order of each point (hereinafter “the part of the retaining wall of this case”) is up to the inside of the land where the applicant’s easements.

(3) After that, there is a dispute over the location of a retaining wall between the applicant and Nonparty 1, and the respondent decided on October 19, 2009 to remove “the part of the retaining wall in the south of the inner retaining wall” and install the retaining wall in a place beyond the land on which the easement extends.

(4) However, on November 12, 2009, the applicant filed a civil petition demanding the respondent to “prohibit the removal of a retaining wall and restore it to its original state,” and the respondent is suspending the removal of the retaining wall.

(d) Current status of construction works of retaining walls north;

(1) While the respondent tried to install a retaining wall on the north side of the instant road, the applicant rejected the applicant’s 40 feet container for transporting agricultural products and forest products produced from the ○○ farm on the ground that the applicant’s 40 feet container for transporting approximately 16 to 18 meters away, heavy equipment and large landscape trees may obstruct the passage of large trucks.

(2) Accordingly, on October 21, 2009, the respondent decided to install a retaining wall in an area outside the scope of the applicant’s easement or the right to passage over surrounding land. However, on November 23, 2009, the applicant filed a civil petition requesting the suspension of construction of the retaining wall in the North Korea, and the applicant suspended construction of the retaining wall in the North Korea.

2. The parties' assertion

The applicant asserts that “the part of the retaining wall in South Korea should not be removed,” and that when installing the retaining wall in North Korea, the applicant would impede the passage of the vehicle. Therefore, the applicant should not install the retaining wall in North Korea based on the servitude recognized in accordance with the conciliation protocol or the right of passage over surrounding land.

3. Determination

A. Determination as to the claim for prohibition of removal of “the part of the retaining wall in South and North Korea”

Since the respondent does not have the right to prevent the removal of a retaining wall that is south, the part of the instant application pertaining to “the part of the retaining wall in the south of the retaining wall” does not have the right to be preserved.

B. Determination on the claim for prohibition against construction of a retaining wall in North Korea

(1) Scope of servitude and whether the servitude is violated

Since the applicant has registered the establishment of a servitude as above, the servitude is recognized to the extent stated in the registration. There is no evidence to deem that a retaining wall in North Korea, which the respondent intends to establish, infringes on the applicant’s easement.

(2) Scope of the right of passage over surrounding land and whether the right is infringed

According to Article 219 of the Civil Act, the right to passage over the surrounding land is recognized “where a piece of land has no passage necessary for the use of the surrounding land between a public road and a public road.” The right to passage over the surrounding land is recognized not only in cases where a certain piece of land cannot be controlled by a public road surrounded by another person’s land, but also in cases where, even if an existing passage has already been used, it is inappropriate to use the surrounding land, and thus it does not actually perform its function as a passage (see Supreme Court Decision 94Da14193 delivered on June 24, 1994). In this case, the scope of the right to passage over the surrounding land is necessary for a person with the right to passage over the surrounding land, but also it should be recognized within the scope of the place and method where the owner’s damage is the lowest (see Supreme Court Decision 96Da33433, 34

On the other hand, when a landowner has already leased a road necessary for the use of the surrounding land, he/she is unable to pass another place on the sole ground that the road is more convenient without using the passage, and even when passing through with the surrounding land, he/she is obliged to pass by selecting the place and method where the least damage is needed (see Supreme Court Decision 75Da2338, May 11, 1976). If a land owner obtains an easement on the passage from the owner of the surrounding land in order to secure a passage leading to a contribution, or leases the passage, the right to pass over the surrounding land is not acknowledged except in extremely exceptional cases where the passage cannot be used as a passage necessary for the use of the surrounding land.

As seen above 1.B.(3), conciliation was concluded on May 15, 2007 between the applicant and Nonparty 1, Cheongju District Court 2006Gahap2220, which included that “the applicant has a right to passage over surrounding land within the scope of the passage route of this case.” There was a dispute between the parties as to the scope of the applicant’s right to passage over surrounding land. However, the scope of conciliation was set by the conclusion of the conciliation under the above litigation procedure.

Therefore, barring special circumstances, the applicant has the right of passage over the surrounding land within the extent recognized in the above conciliation, and in this case, the right of passage over the surrounding land is equally established. Therefore, the applicant cannot be deemed to have the right of passage over the surrounding land beyond the scope recognized in the above conciliation, as the right of passage over the surrounding land is equally established.

(3) Whether it interferes with servitude or right of passage over surrounding land

According to the petitioner's assertion, it may be said that the respondent is likely to interfere with the applicant's right to passage over the surrounding land by installing a retaining wall outside the passage of the instant road. However, the scope of the applicant's right to passage over the surrounding land or the scope of the right to passage over the surrounding land is considered to be a passage of the instant road, the width of which is about four meters. Moreover, even if the respondent performs installation works of a retaining wall over the north of the instant road, there is no material to recognize that the respondent infringes on the applicant's right to passage over the surrounding land or interferes with the exercise of the right

4. Conclusion

Thus, the application of this case constitutes a case where the vindication of the right to be preserved is insufficient, and it is dismissed as it is without any need to further determine the necessity of preservation, and it is so decided as per Disposition.

[Attachment] Drawings, etc.: omitted

Judges Jeon Jong-tae (Presiding Judge)