주위토지통행권자의 통행지소유자에 대한 보상의무의 범위에 관한 검토

In the civil cases about the right of passing over surrounding land, it might be an important issue how to estimate the damage done to the lands passed over that the person having the right would compensate the owner of the lands - because the 'passing' is different to the occupation of the lands. The Supreme Court of Korea ruled that the criterion to estimate the damage was the rent of the lands and the court could reduce the amount of compensation in the light of various elements – the point when the landowner obtained the land, the property tax imposed to the land, the possibility to use the land as its own purpose, the existence of people who pass over the land, the way the passing is done, and so one. In spite of the judgment, it is still uncertain how to consider the various elements to reduce the compensation in the individual cases. This article looks through the specific examples taking into account the elements and seeks the rational applications of the elements. The court should take into account who has made current conditions of the land to estimate the rent of the land. And the point when the landowner obtained the land should be considered with the viewpoint of the protection of the landowner’s trust. The damage compensated to the landowner should be reduced if the landowner uses the land as his or her own purpose in spite of the passing. And although there are another people who are passing over the land, the damage compensated to the landowner should not be reduced if the landowner has no right to demand compensation to the people. These elements to reduce the compensation could be applied not only the compensation about the right of passing over surrounding land but also the unjust enrichment by passing without any rights. However, it should be taken into account that the elements has been changed when the elements are applied to the unjust enrichment by the passing done before.