208Kahap232 Prohibition of Obstruction

Social Welfare FoundationOO Welfare Foundation

ZO

May 21, 2008

1. Subject to the condition that the obligee deposits the amount of KRW 50 million (50,000,000) as a guarantee for the debtor or submits a document concluding a payment guarantee entrustment contract with the amount of the above amount as the insured amount:

A. The debtor must remove and remove seedlings, etc. that obstruct passage on the ground that connects each point of the annexed drawings among the lands listed in the annexed sheet within seven (7) days from the date of service of the original copy of the decision of this case.

B. The debtor shall not interfere with the creditor's use of the above road as an access road to the construction site executed on the 00-dong 624-5, Daegu Northern-gu, 624-5, by means of installing or destroying or damaging things that obstruct the passage of the above paragraph (a) above.

2. If the debtor fails to comply with the above paragraph 1-A(a) within the above period, the creditor may, at the expense of the debtor, have an execution officer affiliated with this court delegated by the creditor carry out the above paragraph 1-A(a) in an appropriate manner.

3. An execution officer shall publicly notify the purport of paragraph (1) above in an appropriate manner.

4. Costs of the petition shall be borne by the debtor;

Except for orders to provide security, the same shall apply to the disposition.

1. Basic facts

According to the overall purport of records and interrogations, the following facts are substantiated.

A. The creditor is a social welfare foundation that constructs a welfare facility for the aged (the elderly convalescent hospital) with the third floor above the ground on the 00-dong, Daegu North-gu, 624-5 ground (hereinafter “instant construction”). The debtor is the owner of each real estate listed in the attached Table.

B. On July 13, 2007, the passage connected to the package of one lane, which is a road owned by the obligee (hereinafter “instant passage”) is a passage through which the residents of the above 00 village entered the above meritorious road. The package construction was completed at the Daegu Northern District Office, and the part (hereinafter “instant dispute land”) connecting each of the real estate listed in the separate sheet with each of the items listed in (i), (ii), (iii), and (iii) is used as part of the instant passage. The obligee reported the commencement of the construction of the instant road on July 13, 2007, and started the opening of the access road after installing a safety fence and installing the access road at the site. As some of the residents opposing the said construction interfere with the construction by installing and installing the agricultural machinery on the instant passage, the Daegu District Court 2007Kahap827, which completed the execution order.

D. However, around April 4, 2008, the debtor mobilized the excavated machine on the ground that the land in the dispute in this case is owned by the debtor, and excavated part of the real estate listed in the annexed Table 1 among the land in this case as part of the land in the annexed Table 1, which is the part indicated in the annexed drawing (1). On the 11th of the same month, the excavated part, which was excavated on the 11st of the same month, and built a fence by breaking up the boundary abutting on the passage in this case. On the 13th of the same month, the part excavated within the above fence was planted. Accordingly, the passage in this case was impossible to pass through the construction, vehicles, equipment, etc. necessary for the construction in this case.

E. After that, the debtor, at the entrance of the passage in the first re-real estate in the annexed sheet No. 1, which is another access route connected to the village in the meritorious service, set up a metal for preventing entry into the entrance and set up a locking system, and then selected only the vehicle of village residents or the vehicle related thereto.

F. Meanwhile, on February 1, 2008, the North-gu Office of the Daegu Metropolitan City revoked a building permit for the instant construction project on the grounds that it is anticipated that the completion of construction works would not be possible due to the collective action by residents and the non-performance of works, but the revocation of the said building permit was revoked on March 25, 2009 upon the administrative appeal filed by the creditor dissatisfied therewith.

2. The assertion and judgment

A. The assertion

(1) The obligee asserts that there is a right to passage over the surrounding land of this case pursuant to Article 219 of the Civil Act, and accordingly, the obligor is prohibited from interfering with the passage of the land of this case without passing through the land of this case.

(2) For this, the debtor asserts that there is no room for the creditor to recognize the right of passage over surrounding land since there is a road, 00, 846, Daegu North-gu, 00-dong, 846, from the construction site of this case, other than the land in this case, the right of passage over surrounding land is over 1m 20cm except the land in dispute among the passage of this case, and that the width of the passage above 1m 20cm, 70cm away from the above passage through the extension of the width of the vehicle or track, so the debtor does not interfere with the passage of the creditor.

B. Determination

(1) Whether the right to passage over the surrounding land is established

The right of passage over surrounding land is recognized not only when it is not possible to exercise overall control over the contribution surrounded by the land owned by another person, but also when it is not suitable for the use of the land, and it is not actually performed as a passage, even if there is an existing passage.

According to the above facts, the right ofpass of this case, which is the passage leading to the contribution at the construction site of this case, is located, but the right of passage over the surrounding land in accordance with Article 219 of the Civil Act, is acknowledged as being considerably difficult for the creditor to enter the construction site of this case without passing through the dispute land of this case, since the right of passage over the surrounding land of this case is restricted due to the moving of farming machinery, etc. to the above right of access to the village or the farming road for access to the surrounding arable land from the village or the public road, and it is difficult for the creditor to secure the passage by leasing the surrounding land to the above construction site of this case as the debtor's assertion.

(B) Scope of traffic rights over surrounding land

The right of passage over surrounding land stipulated in Article 219 of the Civil Act is restricted to the use of surrounding land for the purpose of using the land without a passage necessary for its original purpose between the public service and the public service. As such, the scope of the right of passage is not only necessary for the person having the right of passage, but also within the scope of the place and method where the damage to the owner of surrounding land is the lowest. In conclusion, in light of social norms, the scope of passage should be determined based on specific cases after taking into account the geographical features, locational features, and utilization of both surrounding land. In addition, the degree of passage should be determined by taking into account the understanding, loss, and all other circumstances of the users of surrounding land (see, e.g.

In order for the creditors to complete a sanatorium for older persons, access to the construction vehicle or equipment should be secured to the extent that there is no danger to safety. The land in question is part of the passage of this case which has been used as a village access road for older persons since long time, and there was no interference with access to the construction vehicle or equipment. However, the debtor's excavation after the commencement of the construction of the construction of this case makes it impossible for them to pass without passing through a small vehicle other than a small one. The debtor can not pass the construction of this case (the debtor asserts that even if the land in question is excluded from the passage of this case, it is sufficient to prove that the passage of the vehicle or equipment is secured even if there is no sufficient evidence to view that the passage of the construction of this case is sufficient for the construction of this case. However, if the area of the road in question is not wide enough for the debtor to recognize the right of passage over the surrounding land, the construction of this case is not likely to be excessively unfavorable to the debtor as part of the land in the attached Form 1).

3. Conclusion

Thus, the application of this case has a vindication of the right to be preserved, and as long as the obligor obstructs the passage of creditors by means of planting seedlings and installing fences, fences, etc. in part of the land in the dispute of this case at present, the necessity of preservation is recognized. Thus, the application of this case is justified, and it is so decided as per Disposition by the creditor on the condition that the obligee provides a security for the debtor.

May 21, 2008

The presiding judge, chief judge, and net judge

Judges Lee Young-jin

Judges Kim Gin-American