주위토지통행권의 법적 성질 등에 관한 일고찰

Abstract

ⅰ) If a land is surrounded by other land and cannot be connected to the public road without passing the surrounding land, the surrounded land loses its economic efficiency in its situation. Because the surrounded land loses its economic value because of its inaccessibility, the right of passing over the surrounding land is provided to remedy the economic loss of the surrounded land. ⅱ) Concerning the legal characteristic of the right of passing over the surrounding land, the civil law of Germany uses the right of passing over the surrounding land as a purpose to resolve the emergent status of land by imposing the duty of patiency on the owner of the surrounding land in a form of imposing a direct limitation on the surrounding land. However, the civil laws of Switzerland and France recognize the right of passing over the surrounding land and understand the legal characteristic of the right of passing over the surrounding land as statutory servitude. This shows that those laws recognize the indirect limitation on the right of the surrounding land. Korea and Japan claim that the legal characteristic of the right of passing over the surrounding land is not an independent reality right and understand it as a legal right of passing which naturally occurs under law. ⅲ) When dividing land and assigning it partially, the majority claim and preceeding judicial decisions of Korea, in principle, deny the success of the free right concerning whether the free right of passing is succeeded to the successor of the land. However, the civil laws of Germany and Switzerland do not recognize the free right of passing in the case of land division and partial assignment, but understand there should be a duty of compensation and the right of passing is succeeded to the successor. The civil law of Japan stipulates the free right of passing in the case of land division and partial assignment, and the preceeding judicial decisions say that the free right of passing is naturally succeeded to the successor.