주위토지통행권의 법적 성질 - 남효순 교수의 물권법의 새로운 패러다임에 기초하여 -

I examined the problems of the common view that has interpreted the Rights of Adjacent Landowners as the content of ownership, or as an extension or restriction of ownership, in countries including Korea. When a landowner requests passage from the owner of the land around it, the owner of the land around it accepts the passage, and the landowner is obliged to compensate the owner of the land around it for damages, this means that a legal relationship is created between the landowner and the owner of the land around it. However, according to the common view that real rights are dominion rights and creditor rights are claims, there is a fundamental limitation in explaining the legal relationship surrounding neighboring rights. In other words, it is not only difficult to derive the legal relationship between the landowner and the owner of the surrounding land from the proposition that a person has dominion over an object, but the legal relationship between the landowner and the owner of the surrounding land is ultimately limited to the name of a claim, especially in the name of a creditor relationship. I believe that “General Theory of Real Rights Based on a New Paradigm,” which takes a critical view of the dogma that “real rights are dominion rights” and presents an interpretation that real rights are rights including claims along with dominion rights, is a starting point in overcoming these limitations. Moreover, there has been a continuing controversy over whether or not the transferee of land ownership rights should succeed to Rights of Adjacent Landowners, with the right of way to surrounding land being at the center of the controversy. “General Theory of Real Rights under the New Paradigm” clarifies the nature of Rights of Adjacent Landowners as Claim Based on Real Right and also notes that its nature is different from other Claim Based on Real Right. In other words, the landowner has control only over his or her own land, but not over the surrounding land. As a result, the Rights of Adjacent Landowners that the owner has over the surrounding land is not inherited by the transferee of the land. This point is convincing in that it provides a solution to the question of whether Rights of Adjacent Landowners is succeeded to or not, and it is also reasonable considering that the establishment and content of the obligation to compensate, along with the right of way to the surrounding land, depends on the fulfillment of the requirements of Article 219 of the Civil Act, and that the right of way and the obligation to compensate are not succeeded to the previous owner. In the past, neighboring relations, including the right to pass through neighboring land, have been limited to the adjustment of interests between neighboring landowners, but it is believed that this is an area with the potential to be discussed in various fields where rights and rights are adjacent, and research will continue on the logical consistency of the basic legal principles of our real property law that can be applied to these emerging fields.