Land Surrounded by One’s Own Land… Passage Blocked by Fence
First Instance “Violation of Right of Passage” Judgment Reversed at Second Instance
Supreme Court “Recognizes Right of Passage on Surrounding Land” Remands Case,
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, ‘A Supreme Court ruling was made that the installation of a fence by the owner of land surrounded by another’s land to prevent access violates the other’s right of passage.’,
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, ‘According to legal circles on the 27th, the Supreme Court’s first division (Presiding Justice Shin Sook-hee) overturned the lower court’s ruling, which was in favor of the defendant, and remanded the case to the Suwon High Court in a lawsuit filed by landowner A in Gwangju City against nearby landowner B, seeking to prohibit obstruction of passage and confirm the right of passage on surrounding land.’,
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, ‘In December 2020, A acquired ownership of the problematic land through a compulsory auction and cultivated crops like watermelons and Aralia elata shoots. The land was a blind lot (a land far removed from roads and undeveloped), so A had been passing through part of B’s land, which B owned since 2004, to access his land.’,
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, ‘In August the following year, B installed a fence between his land and A’s land and put up a notice saying, “All passage is prohibited without the owner’s consent as it is private property.” A requested passage from B, but when B refused, A filed a lawsuit. A also demanded compensation of 164,960 won for not being able to harvest 12 watermelons on time due to B’s obstruction, based on the wholesale price of watermelons at 13,747 won each.’,
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, ‘The crux of the lawsuit was whether B infringed on A’s “right of passage on surrounding land” (the right to necessarily pass through another’s land when one’s land is entirely surrounded by others). A argued that it was impossible to access his land without passing through B’s land, while B contended that there was an alternative route.’,
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, ‘The first instance court sided with A, ruling “A cannot access his land without passing B’s land, or it requires excessive costs, and A’s passage is the least damaging method for B”. The passage area on B’s land was not large compared to the whole of B’s land, and considering the environment, it determined that the passage through B’s land was minimally necessary for transporting small agricultural machinery or tools. The alternate route proposed by B was deemed unsuitable due to its exposed soil, rocks, tree roots, slope toward the creek, and drainage ditches which impeded equipment transport.’,
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, ‘However, the second instance court reversed the ruling, based on the installation of a 1-meter-wide cement road surrounding A and B’s land, the incline and watercourse on the passage through B’s land, and the presence of many planted crops like plums, mulberries, Aralia elata shoots, wild berries, and blueberries on B’s land. It found that A should bypass B’s land.’,
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, ‘The conclusion was overturned again at the Supreme Court. The Supreme Court concurred with the first instance court, viewing that the embankment path and forested areas regarded as alternative routes in the second instance did not adequately function as a passage. It noted that while people might pass, it was extremely difficult to transport necessary farming equipment.’,
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, ‘In this ruling, the court reaffirmed the legal principle that “Under civil law, the right of passage on surrounding lands is recognized not only when the landowner can’t access their land without using surrounding lands as a passage or route at all but also when it requires excessive costs. It is also recognized when an existing route does not function adequately as a passage.”‘
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