Gangneung Attorney | Helping the Client to Obtain a Decision Prohibiting Passage

The client, as the owner, claimed that the defendant was using the plaintiff's land without permission, and based on ownership, requested a prohibition of passage against the defendant on the passageway at issue in this case.

Prohibition of passage means, quite literally, prohibiting passage over a particular place.

Recently, conflicts over passage on private land have been intensifying.

This is because the current Private Road Act, while stating that a person who establishes a private road may not restrict or prohibit the passage of the general public, sets exceptions that broadly recognize the rights of the person who establishes the private road.

Recently, in the Paju region, there was also a case in which conflict intensified when a landowner built a gate on a road that village residents had freely used for decades and controlled the hours and vehicles.

In addition, disputes between landowners and passageway users frequently arise when part of the land is being used as a passageway.

This is because, even when the land is one's own, if it becomes a public road, the owner's blocking the road outright can amount to an abuse of rights.

In such a case, it must be confirmed whether the passageway in question is a passage that can be protected as a subject of 🔗the right of passage over surrounding land.

This is because, if passage is blocked carelessly even though it is a passage for which the right of passage over surrounding land is recognized, this amounts to a civil tort and may result in liability for 🔗a lawsuit for damages.

For a prohibition of passage, an application for a provisional injunction prohibiting interference is required. A provisional injunction prohibiting interference is intended to set a provisional position with respect to a disputed legal relationship, and is permitted in particular to avoid significant harm to a continuing legal relationship, to prevent imminent danger, or for other necessary reasons.

Whether a provisional injunction is necessary is determined by considering the balance of interests of both parties depending on whether the application is granted, the prospects of winning or losing in the future suit on the merits, and various other circumstances.

The client is a farmer who makes a living from farming and grows fruit on farmland that the client owns.

However, a problem arose when the defendant, the owner of land adjacent to this farmland, passed through the client's farmland without permission in order to reach the defendant's own land.

This is because the defendant's passage went beyond merely walking along a path and often involved the use of large farm machinery or vehicles, causing serious damage to A's farmland.

The roots of the fruit trees were exposed and the crops did not grow properly, so the harvest decreased, and part of the land was also damaged.

In response, the client asked the defendant several times verbally to stop passing through, but the defendant ignored this, saying he would only pass through when necessary.

The attorney emphasized that the client's application for a provisional injunction prohibiting passage was due to such damage.

The attorney argued that the land in question was clearly the client's property and that the defendant had passed through without permission, having no right of passage whatsoever.