2011Na2265 (Joint) Confirmation of the existence of obligations

2011Na2272 (Consolidation) Confirmation of the existence of a debt

201Na2289 (Counterclaim)

Busan Seo-gu

Representative Lee ○○

Law Firm Jeong-man, Counsel for the plaintiff-appellant

Attorney Lee Jung-chul, Counsel for the plaintiff-appellant

For each entry (Provided, That the number of Dong and Dong recorded in the above list' Address column shall be Busan.

Hea-gu ○○○○○○○○ apartment is the Dong and lake of the ○○○ apartment).

Attorney Park Hong-chul et al., Counsel for the defendant-appellant

Attorney Yoon Jae-soo et al.

last address: OOOOOO000 OOOOOOOOOOOOOOOOOOOOOOO

29 (Joint), 2010 Gab272 (Joint), 2010 Gab8078 (Counterclaim) Judgment

A. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) as indicated in the [Attachment 1] Defendant’s Schedule the amount corresponding to each of the corresponding amounts indicated in the “recognition Amount” column of the same Schedule, and to each of the said amounts, 5% per annum from May 11, 2010 to April 10, 2012, and 20% per annum from April 11, 2012 to the date of full payment.

B. It is confirmed that the damages liability of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Defendant) listed in the Defendant List does not exceed each of the amounts listed in the above paragraph A. The damages liability does not exist in excess of each of the amounts described in the above paragraph (A).

C. The Plaintiff (Counterclaim Defendant)’s replacement (1) as to the Defendant (Counterclaim Plaintiff) indicated in the Defendant’s Schedule and the remainder of the Defendant (Counterclaim Plaintiff)’s respective counterclaims are dismissed.

2. Change (2) of the judgment of the court of first instance on the part against the Defendant (Counterclaim Plaintiff) in the separate sheet of the judgment of the court of first instance (2), the part against the Plaintiff (Counterclaim Plaintiff) is revoked, and the part against the Defendant (Counterclaim Plaintiff) corresponding to the revoked part is dismissed, and the Plaintiff (Counterclaim Defendant)’s liability for damages against the Plaintiff (Counterclaim Plaintiff) against the Plaintiff (Counterclaim Plaintiff) due to malodor that occurred in the ○○○○○○○○○○○○○○○ OOOOO, located in Busan.

3. The appeal against the Defendant (Counterclaim Plaintiff) and the Defendant Han-○ is dismissed, respectively, except for the Defendant (Counterclaim Plaintiff) as indicated in the attached Forms (1) and (2) of the Plaintiff (Counterclaim Defendant).

4. A. The total costs incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) as indicated in the Defendant’s Schedule are assessed against each party by aggregating the principal claim and the counterclaim;

B. The total cost of the lawsuit between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) as indicated in the Defendant’s Schedule (2) is assessed against the said Defendant (Counterclaim Plaintiff) by aggregating the principal lawsuit and the counterclaim;

C. The costs of appeal incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) and the Plaintiff (Counterclaim Plaintiff) are assessed against the Plaintiff (Counterclaim Defendant). The costs of appeal incurred between the Plaintiff (Counterclaim Plaintiff) and the Defendant (Counterclaim Plaintiff) are assessed against the Plaintiff (Counterclaim Defendant).

5. Of the column for “name” of the attached list of the defendant in the judgment of the first instance court, the term “O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

(a) Main claim;

It is confirmed that there is no liability for damages to the defendants of the plaintiff due to malodor produced in the O00 ○○○○○ of the plaintiff (the counter defendant; hereinafter referred to as the "Plaintiff") located in the OOOOOO in Busan YOOOO.

(b) Counterclaim;

The Plaintiff shall pay to the Defendant (Counterclaim Plaintiff) the amount indicated in the [Attachment 1] Claim Amount in the [Attachment 1] List of Defendant (Counterclaim Plaintiff) with the corresponding amount and the interest calculated at the rate of 20% per annum from the day following the delivery of the copy of the counterclaim of this case to the day of complete payment.

2. Purport of appeal

In the judgment of the court of first instance, the part against the plaintiff shall be revoked, and all other defendants' counterclaims shall be dismissed, and it shall be confirmed as stated in the purport of the claim.

1. Basic facts

A. A. Around November 1992, the Plaintiff was established by consisting of Eul, such as leather processing companies, etc. located in the ○○○○○○○○○○○○, located in the Busan Seo-gu, Busan Seo-gu. Around November 1992, the Plaintiff completed the construction of this case’s ○○○○○○○○, located in the Busan Seo-gu OOOOO (hereinafter “the instant ○○○○○○○”). From January 1993, the Plaintiff operated the instant ○○○○○○○.

B. On January 2005, ○○○○○○ apartment (hereinafter “instant apartment”) completed the construction of the instant apartment on the land of Busan Seo-gu ○○○○○○○○○○ (hereinafter “instant apartment”).

C. On April 26, 2006, the Busan Metropolitan City Mayor designated the area included in the instant ○○○○ as a malodor control area according to the Administration of the Busan Metropolitan City Seo-gu (hereinafter “Saong-gu”).

D. As stated in the separate sheet(1) of the defendants in the separate sheet(2) as shown in the separate sheet(1), the remaining defendants entered and resided in each apartment of this case as stated in the separate sheet(2) of the defendant's residence period in the separate sheet(2). However, the defendants in the separate sheet(2) were born after the termination date of the period so claimed, and the defendant's resident registration numberO-000 in the separate sheet(387) of defendant Kim Kim ○-○ was stated in the separate sheet's name(387) and the "OO-O-O000" in the separate sheet(38) and the "O-O-OOO" of defendant Park ○○'s resident registration number in the separate sheet(1318) are each clerical errors of the "O-OO-OO".

E. Around October 2008, the Defendants filed an application with the Central Environmental Dispute Mediation Committee for adjudication against the Plaintiff, etc. for compensation for damages caused by malodor generated in the instant ○○○○○○○.

[Reasons for Recognition] without dispute (Provided, That this does not apply between the plaintiff and defendant Han-○), Gap evidence 1

Each entry of evidence 1,2, Ulsan1 to 3, and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff's assertion

The Plaintiff asserts to the following purport and seeks confirmation to the Defendants that there was no liability for damages due to malodor generated in the ○○○○○○○○○○○○.

1) Since the ○○○○○ Industrial Complex (hereinafter “○○○○”) has a malodor generated in addition to the instant ○○○○○○○○○○○○, such as the gold Corporation, the Salt Color Corporation, and the ○○cheon, it cannot be readily concluded that the Plaintiff caused malodor in the instant apartment.

2) The instant ○○○○○○○○○ was operated prior to the construction of the instant apartment complex, and the Plaintiff et al. operated facilities to prevent malodor, and the degree of malodor in the said apartment complex is not so severe. As such, the said malodor is within the scope that the Defendants have to sign.

3) However, since the Defendants filed an application against the Plaintiff for adjudication against the Central Environmental Dispute Mediation Committee for the award of damages caused by malodor, there is a benefit to seek confirmation of the absence of the above liability for damages.

B. The remaining defendant-Counterclaim plaintiff's assertion except defendant Han-○, et al.

The Defendants asserted the counterclaim to the following purport, and at the same time claimed by the Plaintiff.

1) A malodor exceeding the tolerance limit between several years has occurred in the apartment of this case due to malodor substances emitted from the instant ○○○○○○.

2) The defendants, who are residents of the apartment of this case, had been suffering from mental suffering due to the above malodor while living in the apartment of this case during the pertinent period.

3) Therefore, the Plaintiff is obligated to pay consolation money to the said Defendants each year as indicated in the attached Table 1 of Defendant’s List as consolation money.

3. Whether liability for damages arises;

(a) Requirements for occurrence of damages liability due to environmental pollution;

1) Under the Framework Act on Environmental Policy, environmental pollution refers to air pollution, water pollution, soil pollution, sea pollution, radioactive contamination, noise, vibration, malodor, sunshine damage, etc. which is generated by a business activity or other human activities, which causes damage to human health or the environment (Article 3 subparag. 4). A business operator shall take measures necessary to prevent environmental pollution caused by his/her business activities (Article 5). If there are two or more environmental pollution generated by his/her workplace, etc., the business operator shall compensate for such damage (Article 31(1)), and if it is impossible to find out which workplace, etc., the business operator shall jointly and severally compensate for such damage (Article 31(2)).

In light of the contents of the above provisions, it is clear that environmental pollution includes malodor that causes harm to human health or the environment, and the head of ○○○○○○○ in this case constitutes a workplace that causes environmental pollution. Thus, if malodor causes damage to the Defendants, barring any special circumstance, the Plaintiff is obligated to compensate for the damage in accordance with Article 31 of the Framework Act on Environmental Policy, unless there is any reason attributable to the Plaintiff (see Supreme Court Decision 9Da55434, Feb. 9, 2001).

2) However, there are inevitable cases where it is inevitable for each person to cause damage or inconvenience to others in the course of running a community life. Thus, each person must not accept it to a certain extent, and it is the same as in the case of environmental pollution caused by malodor. Thus, the act of causing malodor does not immediately be illegal, but it does not constitute illegality only when it exceeds a certain scope and limit to be acceptable in light of social norms.

3) Whether the environmental pollution caused by malodor exceeded the limit that can be accepted by social norms ought to be determined by comprehensively taking into account all the circumstances, including the nature and degree of damage, the public nature of benefit from damage, the form of harmful act, the public nature of harmful act, the possibility of preventing harm and avoiding damage, the possibility of violating public law regulations, whether the regulations have been violated by public law, regional characteristics, the prior relationship of land use, and the progress of negotiations (see Supreme Court Decision 2003Da28989, Nov. 14, 2003). In addition, if there are direct regulations on malodor, etc. under related Acts and subordinate statutes, it is important data to determine whether the regulations are appropriate under private law, and such regulations under public law should be deemed as the minimum standard to determine illegality, barring any special circumstances. In specific cases, if the degree of actual malodor, which is fit in public law regulations, is remarkably so high that it can be evaluated as unlawful if it exceeds the acceptable limit under social norms (see Supreme Court Decision 6460, Sep. 13, 2004).

(b) Allowable emission levels of designated malodor substances, etc. prescribed by the Malodor Prevention Act;

According to Article 2 of the Malodor Prevention Act, the term " Malodor" means smelling substance that causes malodor, such as hydrogen hydrogen, mercaptan, amines, and other gaseous substance that causes displeasure and aversion by stimulating people's sensence, and the term "designated malodor substance" means a malodor that causes malodor, as prescribed by Ordinance of the Ministry of Environment, and the term "the malodor substance" means a smell that causes malodor, which causes displeasure and aversion by stimulating people's obsence through the simultaneous action of two or more malodors, and Article 2 of the Enforcement Rule of the Malodor Prevention Act and attached Table 1 of the Enforcement Rule of the Malodor Prevention Act provide as a designated malodor substance from February 10, 2005 to Memers, ethyl ethers, etc.

In addition, in accordance with Article 7 (1) of the Malodor Prevention Act, Article 8 (1) and attached Table 3 of the Enforcement Rule of the Malodor Prevention Act, complex malodor is measured by applying the method of environmental contamination test in accordance with Article 6 (1) 4 of the Environmental Testing and Inspection Act, designated malodor is measured by applying the same method of environmental contamination analysis. Designated malodor is permitted by applying the same method of measurement in case of an industrial area, complex malodor is allowed only when 100 diversities are discharged in an industrial area, and 20 divers are allowed in the boundary of a site. Methylmers among designated malodors are not more than 004 pp in case of an industrial area, not more than 02 pp in case of other areas; 0.6 pp in case of an industrial area; and 0.2 pp in case of other areas, only when the emission of malodor is measured by measuring methods of emission in accordance with the same method of measurement, it is necessary for the business operator to determine which malodor is more than permissible in case of multiple malodor in principle.

(c) Fact of recognition;

The following facts can be acknowledged in full view of the statements in Gap evidence 1-1, 2, Gap evidence 1-2, Eul evidence 1, 3 through 7, 9 through 12, and the whole purport of the arguments in relation to the fact-finding of the ○○○○○○○○○○○○○○○ Association, which is an incorporated association of this court. The entries in Gap evidence 3 alone are insufficient to reverse it, and there is no other counter-proof.

1) The apartment of this case is located in the residential area where the malodor produced from the above ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○st

2) Around early 2005, Busan Metropolitan City Health and Environment Research Institute (hereinafter referred to as the “KID”) measured malodor in various places near the apartment complex of this case in areas where malodor is anticipated to be emitted. The result of measurement of hydrogen (pm: pm) which is a designated malodor substance, is as follows.

A person shall be appointed.

3) When a civil petition against malodor was filed by the occupant, etc. of the apartment of this case, the Gu of Bana-gu measured malodor against the head of ○○○○○ in this case from Jun. 15, 2005 to Mar. 12, 2008. As a result, 15 times during the said period, the luxate hydrogen and ethyl ethyls, which are multiple malodors and designated malodors, have been measured over 15 times during the said period. The Gu of Bana-gu imposed an administrative disposition on the Plaintiff, such as recommendation for improvement, order for implementation of measures, and fine for negligence, according to the above measurement result. The main contents are as stated in the "attached Form", stating the result of measurement of malodor and the indication of administrative disposition.

4) The Busan Health Institute measured malodor in the apartment of this case on August 2005 and around September 200 of the same year, and the result is as follows.

A person shall be appointed.

5) On November 16, 2007, from November 16, 2007 to December 31, 2008, the OOOOOOoology association: (a) collected 182 samples over 12 occasions in the instant apartment and ○○○○ apartment, ○○○ apartment, salt fluorial, second metal melting complex, gold complex, fishery product processing complex, leather complex, chemical complex, etc., and collected 182 samples, and fluoring the atmosphere by using malodor, the method of measuring air quality using malodor, and the method of hearing the opinions of neighboring residents by telephone, and then prepared a final report, and submitted it to YOO. The main contents related to the above Amte and ○○○○○○ in the above final report are as follows:

① Major cause substances that cause malodor in the apartment of this case were mainly sulphical compounds, such as hydrogen and ethyl methyl, etc., and sulna, but were replaced with the content of malodor substances emitted by the head of the instant ○○○○○.

1 ② The degree of contribution to the malodor of the apartment of this case was found to be the largest ○○ head of this case among multiple places of business producing malodor in the vicinity.

③ As a result of the measurement of air quality from March to November of the same year by using malodor centers in the apartment of this case, it frequently occurred in March and April, 200, but at the end of May, it gradually decreased and the result shows a very low quantity after August. The reason is that the main wind of the apartment of this case was North and northwest, which directly affects the high concentration malodor in ○○○○○○○ in this case, and it is deemed that the cause was that it was due to the change of the remaining wind or south-west, while the high concentration malodor in ○○○○○○ in this case was the north wind or northwest, which directly affects the storm.

④ The instant ○○○○○○○○ generally poor malodor control status, low malodor control capacity, and low sulfur oxides in high concentration, which are 1,500 to 4,000 ppm in flow storage, were emitted in a large quantity, and it was inappropriate to remove major malodor substances, such as high concentration hydrogen, even though malodor prevention facilities were operating model facilities.

⑤ As a means of malodor control in the future, it is suggested that the ○○○○○○○ in the instant case should be equipped with covering devices for wastewater flow storage, breadth tank, bio-water reaction tank, etc., with exhaust equipment installed in covered facilities to control malodor leakage by causing negative pressure to take place, and the collected malodor gas should be installed and operated by applying the pharmacological gas refining method or bio-scopter method.

6) On May 9, 2008, the Ministry of Environment, which received a civil petition from the council of occupants' representatives of the apartment of this case due to bad faith from the council of occupants' representatives of the apartment of this case, was a malodor substance generated in the above ○○○ head and ○○○○○○○ complex, etc., as the major cause of the malodor damage to the apartment of this case.

7) On May 22, 2008, the Plaintiff: (a) determined that the Plaintiff was insufficient to take the malodor prevention measures to prevent malodor, and (b) submitted a performance memorandum to the effect that the Plaintiff completed the construction of a flow storage tank, the transformation room, the covers and malodor prevention facilities for the main processing process, the complete covering facilities and malodor prevention facilities for the main processing process, the replacement of aging equipment and pipes facilities, etc. until the end of December 2008, to reduce malodor.

D. Determination

According to the above facts, the Plaintiff did not take appropriate measures to prevent malodor for several years despite the Defendants’ continuous filing of a civil petition with the nearby residents during the period of living in the apartment of this case, and discharged hydrogen and ethyl ethyl methyls out of the ○○○○○○○○○○○ in this case, which is a complex malodor and designated malodor substance, much more than the permissible level prescribed by the Malodor Prevention Act. ② In the case of measurement on the apartment of this case, which is not the boundary of the site at the above ○○○○○○○○○○○, but is not the site boundary, but the apartment of this case, which is a residential area where the Defendants’ residential area, is detected of hydrogen carbon, which is a complex malodor and designated malodor substance over the industrial area’s above permissible level. ③ The main cause of malodor in the apartment of this case and the malodor substance discharged in excess of the permissible level, such as the same as sulfur emitting hydrogen, etc., the Plaintiff’s contribution to the malodor is the largest among neighboring places of business, and the Plaintiff did not take measures to prevent the malodor for ○○○.

In light of the above circumstances, the above legal principles are comprehensively taken into account, and malodor is naturally perceived through human respiratory, and considering the fact that the defendants cannot avoid it, the defendants are considered to have suffered from mental suffering due to malodor in the apartment of this case, even though the malodor in the apartment of this case has multiple complex causes, such as the emission of malodor in another place of business, and the head of ○○○○○ was operated prior to the construction of the apartment of this case, it is reasonable to view that the plaintiff, as the residents of the above apartment of this case, suffered from mental suffering due to malodor and exceeded the permissible level of admission, even though the malodor in this case was operated prior to the construction of the apartment of this case.

The plaintiff asserts to the effect that the malodor intensity of the apartment of this case does not exceed 2.5 in the case of the judgmenter's direct method measuring the intensity of malodor through the dilution, so the malodor intensity of the apartment of this case does not exceed 2.5, and thus, the malodor of the apartment of this case is within the scope to be acceptable by the defendants. However, on 204, at the time of the enactment of the Malodor Prevention Act, the plaintiff deleted the direct related method, which is a method of assessing the complex malodor adopted by the existing Clean Air Conservation Act, and adopted only the air-dilution pipe method, in light of the result of the measurement of the complex malodor under the Air-dilution Control Act, the result of measurement of the designated malodor substance measurement by the apparatus dilution method, etc., as seen earlier, the plaintiff's above assertion is not acceptable.

Therefore, the plaintiff is obligated to compensate the defendants for damages caused by malodor pursuant to Article 31 of the Framework Act on Environmental Policy.

However, the Defendants stated in the separate attachment (2) are born after the completion date of the damage period claimed by them. Therefore, there is no damages liability of the Plaintiff against the said Defendants due to bad faith arising from the instant ○○○○○○○○○○○○○.

4. Scope of damages.

Considering all the circumstances revealed in the argument of this case, including the location of ○○○○○○ and its regional characteristics of the apartment complex of this case and the degree and duration of malodor that can be perceived in the above apartment complex; the type and degree of multiple malodor and designated malodor substances emitted in the above ○○○○○○○○○○○○○○○○, the Defendants’ dwelling period in the above apartment complex; the aforementioned ○○○○○○○○○○○○ and apartment complex’s completion time; and technical and economic difficulties in preventing malodor in preventing the above ○○○○○○○○○○○○○○○○○○○○○○○ and the above apartment; etc., the amount of consolation money to be paid by the Plaintiff is the amount indicated in the separate sheet (1) and the same list in the case of the Defendants listed in the defendant’s list, and (2) the amount of consolation money to be paid by each corresponding amount stated in the separate sheet (in the case of the remaining Defendants other than the Defendants listed in the defendant’s list, it is reasonable to determine the amount of consolation money in this case.

Therefore, the plaintiff is obligated to pay 5% per annum under the Civil Act until April 10, 2012, and 20% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the day of the decision that it is reasonable for the plaintiff to dispute as to whether or not the plaintiff has obligation to pay 0% per annum under the Civil Act from May 11, 2010 following the day when the copy of the counterclaim of this case claimed by the above defendants was served on the plaintiff. The plaintiff is obligated to pay damages for delay set forth in the attached Table 1, 20% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the day of the full payment, and there is no amount set forth in the attached Table 1, 1, 2, 3, 000 won per annum from the day after the above defendants had been served on the plaintiff, and there is no amount set forth in the attached Table 4, 2,010 won per annum as to each of the above above above damages from the above amount.

5. Conclusion

Therefore, the plaintiff's attached Form 2 (2) shall be accepted as the plaintiff's amendment (2) claims against the defendants listed in the defendant's attached Form 1 (2) shall be justified, and the above defendant (Counterclaim plaintiff)'s claims against the defendants shall be dismissed as there are no grounds. The plaintiff's claims against the remaining defendants and the plaintiff's counterclaim against the defendant (Counterclaim plaintiff) shall be accepted within the scope of the above recognition, and the remainder of the plaintiff's claims and counterclaim shall be dismissed as there are no grounds. The judgment of the court of first instance is unfair in part of this conclusion. The plaintiff's appeal against the defendants listed in the attached Form 2 (2) of the defendant's attached Form 1, 2, and 3 of the judgment of the court of first instance shall be modified as stated in the attached Form 1 (1) of the judgment of the court of first instance, and the remaining defendants' appeals against the defendants shall be revoked, and the part of the judgment of the court of first instance as to the defendants' claims against the defendants shall be revoked and dismissed as above.

New Constitutional Court

Kimok-Dhan

A person shall be appointed.

List of Defendants

○○ and 4482 persons