통행지역권의 침해와 물권적 청구권

Claim for Removal of Disturbance Based on Easement of Access

A person having a servitude is entitled to use the land of another person for the convenience and benefit of his own land for a certain purpose. And, the Easement of Access is a right attached to one particular piece of land which allows the owner of the land (the dominant owner) either to use the land of another person (the servient owner)in a particular manner. So an easement attached to access a road is the easement of access. In case the easement of access is trespassed by a trespasser, it has the property right that is the exclusion for trespasser. In other words, A person having a Easement of access may demand the cessation of disturbance from a person who disturbs the right, and may demand either prevention of the disturbance. In this case, it is problem who has its right and who pays the expense to the exclusion for the trespasser. That is to say, it is problem that the dominant owner excludes the trespasser at the expense of the owner, or the servient owner. This paper describes claim for removal of disturbance that is trespassed by trespasser based on easement of access and analyzes recent Japanese judicial precedent.