Right of passage due to green relations and right of use by the owner of passage;

Since there is no passage between a certain land and a public road, it is possible for the owner of the land to pass around the surrounding land or to establish a passage to a public road, it does not have the right to exclude the possession of the owner of the passage land, nor the owner of the passage land may request the delivery of the transit right holder who exclusively occupies it.

Article 219 of the Civil Act

Plaintiff

Defendant Park Byung-chul, Counsel for the defendant-appellant

Seoul High Court Decision 78Na1598 delivered on July 13, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

Since there is no passage between a certain land and a public road, it is possible for the landowner to pass around the surrounding land to enter a public road or to establish a passage to the public road, the owner of the passage road is allowed to use the land (passing land) and to have a right to de facto control over it, barring special circumstances, and it is only possible to use the land within the scope of the right to passage, unless there are special circumstances.

Therefore, the plaintiff is obligated to allow the defendant to pass through the land at the same time due to the defendant's right to pass over the land at 12 square meters of the attached drawing (Article 219 of the Civil Code) of the judgment of the court below. However, the defendant cannot exclude the plaintiff's right to pass over the land because he has the right to pass over the land. Thus, the plaintiff's claim against the defendant who exclusively occupies the above land should be accepted (refer to Supreme Court Decision 76Da2823 delivered on April 26, 197). Accordingly, the judgment of the court below which accepted the plaintiff's claim in the same purport is just and there is no violation of law by misunderstanding the legal principles as to the right to pass over the surrounding land and the right to pass over the surrounding land, or by infringing the defendant's freedom and safety of residence, as in the theory of lawsuit.

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

Justices Yu Tae-hee (Presiding Justice)