[1] Whether the right to passage over surrounding land is recognized if there is an existing passage leading to a meritorious deed (affirmative with qualification)

[2] Whether the owner of the right of passage over surrounding land may seek delivery of the passage part within the scope of the right of passage over surrounding land to the person who has the right of passage over surrounding land or seek removal of the passage part (negative with qualification)

[3] Whether the owner of a passage may claim the removal of a facility under Article 218 of the Civil Code (negative)

[1] The right of passage over surrounding land is recognized not only when a certain piece of land cannot be controlled by a public road surrounded by another person's land, but also when it is not possible to actually function as a passage because it is inappropriate for another person to use the surrounding land, even if there is an existing passage.

[2] A person who has a right of passage due to a close relation to another person's land is only able to use the land within the scope of the right of passage, and it does not have the right of exclusion from the possession of the owner of the right of passage. Therefore, the owner of the right of passage can seek delivery of the right of passage to the surrounding land which exclusively occupies the right of passage. However, if necessary, a passage may be established on the land. Thus, a passage may be established by means of construction of sand, brick stairs, removal of trees impeding the right of passage, etc. If it does not infringe the interests of the owner of the passage, a passage may be enclosed. Even if a person of the right of passage over the surrounding land has established a passage, if the owner of the right of passage over the surrounding land does not have exclusive possession of the passage to the extent that the owner of the right of passage excludes the possession of the owner of the right of passage over the surrounding land, the owner of the right of passage over the surrounding land cannot seek removal of the passage installed.

[3] Where a landowner cannot install necessary water pipes, flowing water pipes, gas pipes, electric wires, etc. without passing through another person's land or requires excessive costs, he/she may pass through another person's land and install them. Thus, the owner of the passing land may not seek removal of the water supply pipes, etc., which meet the above requirements.

[1] Article 219 of the Civil Act / [2] Articles 213, 214, and 219 of the Civil Act / [3] Articles 214 and 218 of the Civil Act

[1] Supreme Court Decision 92Da1025 delivered on March 31, 1992 (Gong1992, 1421) Supreme Court Decision 92Da3631 delivered on December 22, 1992 (Gong1993Sang, 582) Supreme Court Decision 94Da14193 delivered on June 24, 1994 (Gong1994Ha, 2077), Supreme Court Decision 97Da4718 delivered on March 10, 1998 (Gong198Sang, 98Sang, 983) / [2] Supreme Court Decision 76Da2823 delivered on April 26, 197 (Gong197, 1040), Supreme Court Decision 209Da293799 delivered on April 26, 198 (Gong197, 2040), Supreme Court Decision 209Da2397497 decided Apr. 29, 19797

[Judgment of the court below]

Defendant (Law Firm, Attorneys Kim Jong-ho et al., Counsel for the defendant-appellant)

Seoul District Court Decision 2001Na67378 delivered on August 21, 2002

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

We examine the grounds of appeal.

1. The judgment of the court below

원심판결 이유에 의하면, 원심은 원고가 1986. 10. 10. 용인시 (주소 1 생략) 전 1,166㎡, (주소 2 생략) 전 556㎡, (주소 3 생략) 잡종지 549㎡(이하 '이 사건 375 등 토지'라 한다)에 관하여 각 소유권이전등기를 경료한 사실, 피고는 위 원고 소유의 토지에 인접한 용인시 (주소 4 생략) 공장용지 1,460㎡에 관하여 1996. 3. 29. 소유권이전등기를 경료하고, 용인시 (주소 5 생략) 도로 126㎡(이하 '이 사건 토지'라 한다)에 관하여 1996. 5. 7. 소유권이전등기를 경료한 후 공장을 경영하고 있는 사실, 피고는 1997. 7. 22.경부터 제1심판결 주문 기재 ㉮부분 10㎡에 시멘콘크리트를 포장하여 공장부지로, 주문 기재 ㉲부분 467㎡, ㉸부분 10㎡, ㉺부분 16㎡, ㉻부분 3㎡에 아스팔트를 포장하여 위 공장으로 출입하는 통로(이하 '이 사건 통로 부분'이라 한다)로 각 점유·사용하고 있고, 용인시 (주소 1 생략) 전 1,166㎡ 중 제1심판결의 별지 도면 표시 74, 73, 72, 71, 70, 69, 68, 67의 각 점을 순차로 연결한 부분에 시멘콘크리트 옹벽(두께 : 0.2㎡, 높이 : 0.75 내지 0.8㎡, 길이 : 47㎡)을, 용인시 (주소 1 생략) 전 1,166㎡ 중 같은 별지 도면 표시 부분에 시멘콘크리트 박스 및 철제뚜껑 맨홀을, 별지 도면 표시 86, 87의 부분을 연결한 점선내 부분에 하수관로를 각 설치한 후 사용하고 있는 사실을 각 인정한 다음 이 사건 375 등 토지의 전전소유자인 소외 1이 이 사건 375 등 토지 중 이 사건 통로 부분에 대한 독점적, 배타적 사용수익권을 포기하였으므로 신의칙이나 권리남용금지의 원칙상 이 사건 통로 부분의 아스팔트, 옹벽, 맨홀 및 하수관로의 철거, 이 사건 통로 부분의 인도 및 부당이득의 반환을 구하는 원고의 청구가 허용될 수 없고, 그렇지 않다고 하더라도 피고가 이 사건 통로 부분에 대한 통행지역권을 시효취득하였거나 이 사건 통로 부분에 대한 주위토지통행권을 가지므로 원고의 청구가 허용될 수 없다는 피고의 주장을 모두 배척한 후 원고청구를 일부 인용하고 있다.

2. As to the grounds of appeal Nos. 1, 2, and 4

Examining the evidence adopted by the court below and the court of first instance as cited by the court below in light of the records, it cannot be deemed that the court below renounced the exclusive right to use and benefit from the passage of this case by Nonparty 1, the former owner of the land, including the case 375, etc., and the defendant's decision that the right to use and benefit from the passage of this case cannot be deemed to fall under the abuse of rights. It is just in the decision of the court below, and there is no error of law such as misconception of facts against the rules of evidence, the prescriptive acquisition of traffic area, the principle of good faith, and the principle of prohibition of abuse of rights, etc.

3. As to the third ground for appeal

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 in question and it actually lacks sufficient functions as a passage (see Supreme Court Decisions 92Da1025, Mar. 31, 1992; 92Da36311, Dec. 22, 1992; 94Da14193, Jun. 24, 1994, etc.).

In addition, since a person who has a right of passage over another person's own land can only use the land within the scope of the right of passage and does not have the right of exclusion from the possession of the owner of the right of passage over the land, the owner of the right of passage can seek delivery of the right of passage over the surrounding land which exclusively occupies the right of passage (see Supreme Court Decisions 75Da1330, May 11, 1976; 76Da2823, April 26, 197; 79Da1460, April 8, 1980, etc.). The owner of the right of passage over the surrounding land can only construct a passage over the surrounding land if necessary (Article 219 of the Civil Act). If the owner of the right of passage over the surrounding land does not infringe the interests of the owner of the right of passage over the surrounding land by building a sand, building a stone, removing trees that can be obstacles, etc., the owner of the right of passage over the surrounding land is not permitted.

Furthermore, the owner of the land can install the necessary water supply pipes, water pipes, gas pipes, electric wires, etc. without passing through another person's land, or require excessive costs (Article 218 of the Civil Act). Thus, the owner of the land passing through the land cannot seek removal of the facilities, such as water supply, etc., which meet the above requirements.

According to the records, the non-party 3 purchased the above land from the non-party 2 to the non-party 3's 7th day of February 2, 1974. The non-party 1 purchased the above land from the non-party 3's 7th day of February 7, 197 to the non-party 3's 7th day of May 8, 196, and the non-party 3's 7th day of May 7, 197, and the non-party 1 purchased the above land from the non-party 3's 7th day of May 7, 196. The non-party 9 was already operated on the non-party 7's 9th day of May 8, 196. The non-party 9 was already operated on the non-party 3's 7th day of May 7, 196. The non-party 3's ownership transfer registration was made.

If the circumstances are as above, although the land of this case has an existing lawsuit leading to a contribution from the land to the public road, the passage of this case is merely a leading way for one person who has been in possession of the land, and it is not appropriate for the use of the land of this case. Since the non-party 3, who was the former owner of the land of this case, used part of the land of this case as a passage through the land of this case, he used it as a passage to the land of this case, it is reasonable to view that the defendant has a right of passage over surrounding land of this case as well as the land of this case, which can be contributed not only to the land of this case, but also to the land of this case 377,378, which is owned by the plaintiff, if he did not pass through the road of this case on the 375th day of this case.

Therefore, the lower court should have further determined the location and scope of the Defendant’s right to passage over surrounding land on the instant land, including the instant case, and whether the Defendant could not install the necessary manle and sewage culvert unless the Defendant passes through the instant land, etc., and then determined the necessity and scope of removal of the asphalt Packaging, retaining wall, Manle and sewage culvert, etc., whether and to what extent the delivery of the land is necessary, whether and to what extent the damage compensation or unjust enrichment exists and the scope thereof.

Nevertheless, the court below rejected all of the defendant's claims on the land of this case on the premise that the defendant's right to passage over surrounding land or water supply is not recognized, and the part of the plaintiff's claims is accepted, and there is an error of law by misunderstanding facts due to the violation of the rules of evidence or misunderstanding of legal principles as to the right to passage over surrounding land or the right to passage over surrounding land and water supply

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)