A. The validity of the right of passage under the bond contract and whether a specific successor acquired the land after the closing of a final and conclusive judgment as to the above right of passage constitutes a successor after the closing of argument under Article 204(1) of the Civil Procedure Act (negative)

B. Scope of and judgment criteria for the right to passage over surrounding land

(c) Object of confirmation of traffic right on the surrounding land;

D. Whether the passage way can be set in preparation for the situation of the use of the vehicle in the case of recognizing the passage right to surrounding land (negative)

A. Since the right of passage based on a claim contract does not have the effect of real right, such as the right of easement, but has the effect of claims only, only the other party who entered into the contract can claim the right of passage, and there is no effect of control over the land itself, as well as it is in principle impossible to claim the right of passage to the successor when the party changes, and therefore, the person who acquired specific land after the closing of argument in a final judgment on the right of passage based on a claim contract does not fall under the successor after the closing of argument in Article 204(1) of the Civil Procedure

B. The scope of passage rights, such as the place and method of passage, is set by the specific agreement between the parties in the case of the right of passage, and the statutory right of passage is set by Article 219(1) of the Civil Act in the case of the right of passage, and it is necessary for the person holding the right of passage under Article 219(1) of the Civil Act, and it is recognized within the scope of the place and method where the damage to the owner of the surrounding land is the lowest amount of damage to the surrounding land. Ultimately, the scope should be determined in accordance with the generally accepted social norms in light of the specific circumstances, taking into account the land category

C. An existing road that has already passed through a public road and is used without any dispute between the owner of the surrounding land and the owner of the surrounding land, it shall be deemed as a passage meeting the requirements of the above paragraph (b). However, unlike an area for passage, the passage right does not always always be fixed to a specific place, and if the owner of the surrounding land changes the method of use of the surrounding land in accordance with the directions for use of the surrounding land, the person having the right to passage over the surrounding land shall move to another place where there is less damage than the one for the owner of the surrounding land. Therefore, the claim for confirmation of the right to passage over the surrounding land must be confirmed whether the surrounding land meets the requirements of Article 219 of the Civil Act at the time of the closing of argument.

D. Since the right to passage over surrounding land is a right to restrict the exclusive right to use the surrounding land owner's land, and is aimed at coordinating the interests of the neighboring land owners, if a person can access and transport a little size of things to a public service, the place and method of the owner's damage to the surrounding land should be selected, and further, the passage way should not be determined in preparation for the future situation of the use of the surrounding land even if it is recognized within the scope of use under the current method of use of the surrounding land.

(a) Article 219 of the Civil Code; (d) Article 204 of the Civil Procedure Act;

B. Supreme Court Decision 88Meu10739, 10746 Decided May 23, 1989 (Gong1989, 986). Supreme Court Decision 91Da32251 Decided April 24, 1992 (Gong1992, 1676) Decided 91Da47086, 47093 (Gong1992, 2528) Decided 91Da961, 9978 Decided May 28, 1991 (Gong191, 17666).

Plaintiff 1 et al., Counsel for the defendant-appellant

Defendant

[Defendant-Appellant] Defendant 1 and 2 others, Counsel for defendant-appellant and defendant-appellant

Busan District Court Decision 92Na1015 delivered on June 25, 1992

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

The grounds of appeal are examined. The supplemental appellate brief is considered to the extent of supplement in case of supplemental appellate brief.

As to the assertion of misunderstanding of legal principles as to the subjective scope of res judicata and the right of passage over surrounding land by agreement.

1. The right to passage over another person's land is the legal right to passage under Article 219 of the Civil Act, namely, the right to passage over another person's land, in addition to the right to passage over surrounding land, that is, the right to passage under an agreement with the owner of the land. The right to passage over an agreement may be made either by the contract of servitude, by the contract of lease or loan of use, or by the contract of non-title that is not provided by the

2. Among them, the right of passage based on a claim contract is not a real right, such as a servitude, but a claim is only effective. Thus, only the other party who entered into the contract can claim the right of passage, and there is no effect of controlling the land itself, and in principle, the successor cannot claim the right of passage when the party changes. Therefore, res judicata of the judgment on the right of passage based on a claim contract does not extend to the specific successor of the land in question.

3. On the other hand, the place of passage, the scope of the right of passage, the method, etc. shall be determined by the contents of the agreement between the parties in the case of the right of passage, and the right of statutory passage shall be determined by the contents of the agreement between the parties in the case of the right of passage, and the person with the right of passage shall not only the person with the right of passage under Article 219(1) of the Civil Act, but also within the scope of the place and the method where the damage to the owner of the surrounding land is the least possible method. In conclusion, the scope shall be determined in accordance with the ordinary social norms by taking into account the land category of both land

In addition, if the existing road has already passed through a public road and is used without any dispute between the owner of the surrounding land and the owner of the surrounding land, it shall be deemed a passage satisfying the above requirements. However, unlike the area for passage, the passage right does not always always be fixed to a specific place, and if the owner of the surrounding land changes the method of use of the surrounding land in accordance with the method of use, the person having the right to passage over the surrounding land shall move to another place with less damage than the owner of the surrounding land. Thus, the claim for confirmation of the right to passage over the surrounding land shall be confirmed on the land which meets the requirements under Article 219 of the Civil Act at the time of the closing of argument (see Supreme Court Decision 8Da10739, 10746 delivered on May 23, 1989).

In addition, since the right to passage over surrounding land is a right to restrict the exclusive right to use the surrounding land by the owner of the neighboring land and to adjust the understanding among the neighboring land owners, if only a width can be secured to the extent of people's access and the transportation of goods by contribution, the place and method of the least damage to the owner of the surrounding land should be selected, and furthermore, it should not be determined as a passage in preparation for the future use to the extent of the current use situation (see Supreme Court Decision 91Da961, 9978 delivered on May 28, 191). In this case, the passage to the extent that people's access and transport of goods by contribution can not be uniformly determined, and its location and scope should be changed depending on specific circumstances, such as the category of the surrounding land and the necessity for its use.

4. According to the records, it is difficult for the plaintiffs to use the above part of the land as the grounds for appeal, and the above part of the plaintiff's right to access to the land was decided by the court below for the above non-party 1 (the above part of the non-party 1's right to access to the land) and the judgment was affirmed on the premise that the non-party 1 had an agreement to recognize the right to access to the above part of the land as to the non-party 1 (the non-party 1's right to access to the above part). The defendant and the non-party 2's intervenor asserted that the non-party 1's right to access to the above part of the above land should not be viewed as the plaintiff 1's right to access to the land, and that the non-party 1's right to access to the above part of the forest and land should not be seen as being proper for the plaintiff 1's right to access to the above part (the plaintiff 1's right to access to the land and the plaintiff 2's right to access to the above land).

5. However, according to the records, the final and conclusive judgment that the court below held that res judicata effect on the defendant and intervenors refers to the Busan District Court Decisions 87Na360 and 88Meu20248, which held that the original copy of the judgment (Evidence 2-2-3 of the above Evidence No. 2-1, the above judgments are based on the premise that the non-party 1 agreed with the above non-party 2 to provide the parts of the case (B), (a), (e) and (e) to the plaintiff 2, 3, and 4 as a passage and not to obstruct their passage, and that the above plaintiffs have the right of passage and the right of passage establishment. Accordingly, the above agreement is a bond contract aimed at passage different from the right of statutory passage provided in Article 219 of the Civil Act, and therefore, even if the defendant or intervenor acquired the above (name 1 omitted after the closing of the final and conclusive judgment, it does not affect the res judicata effect of the judgment after the closing of argument.

Therefore, the court below did not err in the misapprehension of legal principles as to the right of passage based on the claim contract or in the misapprehension of legal principles as to the subjective scope of res judicata.

6. In addition, according to the reasoning of the judgment of the court below, the court below recognized the fact that the defendant and the intervenor succeeded to the obligations of the above non-party 1 as the successor after the closing of argument of the above non-party 1, who is the party to the right of passage, but held that the right of passage for access to surrounding land exists to the plaintiffs, and held that the scope of the right of passage should not be limited to the person holding the right of passage, but the scope of the right of passage should not be limited to the extent of the place and method where the damage to the owner of surrounding land is the smallest place and method, and the scope of the right of passage should not be limited to the scope of the right of passage

7. In the instant case, if there was an agreement between the non-party 1 and the above plaintiffs to use the land in the instant case (B), (a), and (e) as a passage, it may be one of the important circumstances to be considered. However, as long as the plaintiffs cannot oppose the defendant or intervenors by such agreement, the existence or scope of the right to passage over surrounding land should not be determined by that agreement. The court below should determine the propriety of the plaintiffs' claims by clarifying all the circumstances as stipulated in the instant paragraph (3), including the size of the forest of this case, the situation or necessity of the plaintiffs' access to the use, the change of the method of using the land owned by the intervenors, and the overall use of the land owned by the plaintiffs, based on the date of closing argument of the court below, on the premise that the res judicata effect of the judgment in this case does not affect the defendant and intervenors. Therefore,

Therefore, without examining the remainder of the grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.