208Gaz. 3154 (Counterclaim), damages, etc.

Daejeon Jung-dong 452-3 Large Building

Representative Representative Lee Sung-sung

Law Firm ○○, Attorneys ○○-○, Counsel for the defendant-appellant

Daejeon, Seo-gu 920 Government Daejeon District Office 2 Dong

Representative Senior Senior Superintendent and Senior Superintendent;

○○ Legal Representative ○○

Defendants Law Firm 00, Attorney 000

2. The principal lawsuit against the Defendant A by the Plaintiff (Counterclaim Defendant) shall be dismissed.

3. The defendant (Counterclaim plaintiff)'s counterclaim against the plaintiff (Counterclaim defendant) is dismissed, respectively.

4. Of the costs of lawsuit, the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) shall be borne by the Defendant (Counterclaim Defendant) including all costs incurred by the principal lawsuit, the counterclaim and the participation in the subsidy, and the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Defendant) shall be borne by the Plaintiff (Counterclaim Defendant) including the costs incurred by the participation in

It is confirmed that there is no obligation to compensate for damages caused by railroad noise and to establish soundproof measures against Defendant A by the order of Paragraph 1 and the plaintiff (Counterclaim Defendant; hereinafter referred to as the "Plaintiff").

【Counterclaim) The Plaintiff shall pay the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) the money indicated in the “amount of Claim” in the attached Form, and establish soundproof measures to ensure that the night noise level falls short of 65dB (A).

A. Location of the apartment of this case

(1) The Defendants are the occupants living in the old apartment located in 111-1 located in the Masan-si (hereinafter “the apartment of this case”) from August 1994 to the present. The apartment of this case was constructed as a rental apartment from the old-day construction around August 1994, but the apartment of this case was constructed as the old-day apartment, but at the time when the old-day construction was due to the bankruptcy of the tenants, the tenants were purchased at present.

(2) The apartment complex of this case is located far from approximately 600 meters away from the railroad tracks in the direction of Daejeon, depending on the railroad tracks, at approximately 600 meters away from the railroad tracks in the direction of Daejeon. In light of the above, the apartment complex of this case takes the form of "A" and each floor 1 to 2 is in parallel with the railroad tracks, and each floor 3 to 11 is in parallel with the railroad tracks.

(3) On the boundary line of the railroad site and the apartment complex of this case, soundproof walls (a height of about 5 meters, about 50 meters in length) are installed, and the part corresponding to soundproof walls among soundproof walls is cut off to pass on the road above the railroad tracks.

(b) Operation status of rolling stock;

(1) A railroad line running adjacent to the instant apartment was reconstructed in 1978 after being opened in around 1914 and began to be operated from April 2004. (2) As of 2008, the number of the first-day train operation on the instant apartment tracks is as follows. Of these, an electrical engine is operating 58 times, 77 times, and 16 times the diesel trains.

A person shall be appointed.

(3) The maximum speed of the train passing along the instant apartment is about 105 km per hour, or the actual KTX’s average speed is about 90 km per hour, 50 km per hour in the case of Saemaeulho Lake and Rose of Sharon, and about 40 km per hour in the case of cargo trains.

(4) Meanwhile, according to the Railroad Statistics Year 193 through 2008, the annual frequency of train operations is as follows (However, ① the following numbers are the standard of letter as the planned number of trains, ② the number of unification and greging trains in the case of 1993 to 1997, and the number of unification trains in the case of 1998 to 2003).

A person shall be appointed.

(c) Finance of the Central Environmental Dispute Mediation Committee;

(1) The 482 apartment occupants, including the Defendants, filed an application for the adjustment against the Plaintiff to the Central Environmental Dispute Mediation Committee (hereinafter referred to as the “Mediation Committee”) to claim compensation for damages caused by the operating noise of the train and to establish soundproofing measures (the Central Exchange Regulation 07-3-119), and the noise measurement has been conducted three times in the mediation procedure, and the noise level has been measured from 04:40 to 05:40 hours, etc. to 57.2dB (A) to 66dB (A) according to the number of houses.2)

(2) On April 17, 2008, the Mediation Commission, based on the above noise measurement result: ① recognized the Plaintiff’s liability for damages for the occupants (105 occupants, the 700,000,000 won were to be paid to the Defendant) with the night noise level of not less than 65dB (A), ② dismissed the application for compensation for the occupants with the night noise level of less than 65dB (A) and ③ paid the Defendants a total of KRW 14,444,070 in consideration of the compensation period (from September 2004 to September 2007) and all the circumstances (However, the noise measurement cost of KRW 70,00,000 was to be paid to the Defendant) and (3) decided to devise soundproof measures to ensure that the night noise level of less than 65dB (A) was less than 65dB (A).

[Ground of recognition] The fact that there is no dispute, Gap evidence 1 and Eul evidence 5, each of Eul evidence 2 (including paper numbers), the purport of the whole pleadings

2. Summary of the parties' arguments;

A. Summary of the Plaintiff’s assertion

(1) On the other hand, the Defendants started residing in the apartment of this case only when they reached around 1994. At the time of 1994, there had already been noise due to the operation of the rolling stock (hereinafter “railroad noise”) in the day the Defendants started residing with the number of railroad noise, so the Defendants were not obliged to compensate the Defendants for damages caused by railroad noise.

(2) Railroad noise occurs only when rolling stock is operated, and since the Korea Railroad Corporation is not the plaintiff, the person who is liable for damages under the Framework Act on Environmental Policy as a cause of noise is also the Korea Railroad Corporation.

(3) Nevertheless, since the Mediation Committee has rendered a ruling that recognizes the Plaintiff’s obligation to compensate for damages caused by railroad noise and the obligation to establish soundproofing measures, it seeks to confirm that the Plaintiff did not bear the said obligation against the Defendants.

B. As the Defendants, the occupant of the apartment of this case, due to the operation of rolling stock, have a railroad noise exceeding the bounds of the socially acceptable level, the Plaintiff, who is the person in charge of the management and maintenance of railroad facilities, is obligated to compensate for mental damage suffered by the Defendants due to railroad noise and to establish soundproof measures so that the railroad noise may reduce the level of tolerance below the level of tolerance.

3. Determination

The main lawsuit and counterclaim shall be judged together.

(a) Occurrence of damage by noise and profits from living;

(1) In this case, the Defendants sought damages based on Article 31 (Strict Liability for Environmental Pollution Damage) of the Framework Act on Environmental Policy, where (1) the damages caused by railroad noise caused by the Plaintiff’s business activities, and (2) the damages caused by railroad noise caused by the Plaintiff’s installation and preservation act; and (3) the damages are sought based on Article 758 (Possession of Structure, etc. and Owner’s Liability) of the Civil Act.

As a claim for maintenance based on right and possessory right, the Plaintiff is demanding to establish soundproofing measures so that night noise level of less than 65dB (A) is below 65dB.

(2) Each of the above claims sources have differences in specific requirements, but they have common requirements that "the harm to a specific person is caused by noise." Thus, in order to recognize liability for damages caused by noise or to accept a claim for maintenance of noise, the interests of the specific person in his/her living environment should be recognized as legally worthy of protection. Therefore, in order to recognize liability for damages caused by noise or to accept a claim for damages, the objective value of the benefits of the lighting and pleasant environment (referred to as "profit of life") which the residents living in a specific land or building have previously enjoyed from the past should be recognized as being legally protected, and the interests of the residents have been infringed due to noise generated by a third person's business activities, etc., and (3) the infringement has to be recognized as being beyond the generally accepted level (see Supreme Court Decision 9Da5434, Feb. 9, 201; Supreme Court Decision 2004Da371479, Jun. 31, 2007; 2004Da71479794, Jun. 37197, 20014

(3) On the other hand, most residents living in a city due to urbanization, industrialization, and over-populated residence will begin residing in a specific place in the situation where there is a certain degree of noise, and as a matter of principle, the residents' living benefits begin to be formed based on the noise level at that place at that place at the time of their commencement. In order for the residents to enhance their living environment at that place, in principle, residents must devise soundproof measures in order to lower their noise level (where Article 21 of the Housing Act and Article 9 of the Regulations on Standards, etc. of Housing Construction are constructed at a point above a certain noise level, the housing project implementer is obliged to install soundproof facilities, and if the indoor noise level is measured, it can be seen that the aforementioned purport is reflected in the foregoing provision).

(4) Therefore, a person claiming damage due to noise shall assert and prove the circumstance that the noise was infringed upon by himself/herself due to a significant increase of noise than at the time he/she commenced his/her residence. Even if the noise level at a specific branch exceeds the noise level stipulated in the relevant laws and regulations, such as the Framework Act on Environmental Policy, if it is difficult to deem that the noise level at the present time exceeds the noise standard, it would be difficult to view that the residents’ legally protected living interests were infringed, or that such infringement exceeded the permissible level.

B. Whether to recognize the infringement of living benefits in this case

(1) With respect to the instant case, as seen earlier, the railroad tracks near the instant apartment are installed in around 1914 and operated continuously until the present time, while the Defendants began to move in and reside in the instant apartment only after they reached around 1994, the Defendants’ living benefits can be known to the effect that the Defendants’ living benefits were commenced on the basis of the railroad noise occurred at the time of moving in. Therefore, even if the noise level as of 1994 continues to exist at the present, or even if the noise level increased early, it cannot be deemed that the Defendants’ living benefits were infringed, or that the degree of infringement goes beyond the bounds of social norms.

(2) However, as seen earlier, the frequency of operation of trains passing through the Gasan Station was somewhat increased in 2008 compared to that of the year 1994. However, there is no evidence to acknowledge that the single noise level generated during the operation of an individual train was higher in 2008 compared to that of the year 1994. The increase in frequency of operation of a train is due to the high speed train (KTX) that mainly started operation since 2004. As seen earlier, the high speed train appears to have less noise compared to the train in the existing diesel engine (Saeho, Rose, Roseho, and Uniformho Lake) due to the difference in the old operation method (the apartment of this case is near the Gasan Station, and therefore the apartment of this case is in high speed, it is difficult to deem that the present noise level of the apartment of this case is higher than the noise level of the apartment of this case at the time of 194.

(3) Therefore, the mere fact that the present noise level of a specific branch among the apartment of this case exceeds the noise level stipulated in the relevant laws, such as the Environmental Policy Standards Act (the degree of excess is minor) was infringed on the Defendants’ living interests, or the infringement was committed beyond the degree that is acceptable by social norms.

D. Sub-committee

(1) Therefore, without examining the remainder as to whether the Plaintiff is a business operator under the Framework Act on Environmental Policy, the Plaintiff did not have any obligation to compensate the Defendants for damages due to railroad noise and to establish soundproof measures, and therefore, the Defendants’ claim for damages and the maintenance claim against the Plaintiff on the premise that the damages due to railroad noise occurred to the Defendants are without merit.

(2) Nevertheless, the conciliation committee made a ruling to order the Plaintiff to compensate the Defendants for damages and to establish soundproof measures. In the event that the conciliation committee made a ruling, if no lawsuit is filed against both or one of the parties to the arbitration on the grounds of environmental damage or the lawsuit is withdrawn within 60 days from the date on which the original copy of the arbitration document was served on the parties, the pertinent arbitration document has the same effect as a judicial compromise (Article 42(2) of the Environmental Dispute Resolution Act). Accordingly, the Plaintiff has a interest to seek confirmation as to the fact that there is no obligation to compensate the Defendants for damages

E. As to the main office against Defendant A

Although the Plaintiff also sought confirmation that Defendant A had no obligation to compensate for damages caused by railroad noise and to establish soundproof measures, as seen earlier, the Mediation Committee did not recognize the Plaintiff’s obligation to compensate for damages against the Defendant, and in this case, Defendant A did not file a counterclaim seeking compensation and soundproof measures against the Plaintiff. Therefore, it is difficult to deem that the Plaintiff has a benefit to seek confirmation of the absence of the above obligation against Defendant A.

4. Conclusion

Therefore, the plaintiff's main lawsuit against the defendant A is unlawful and thus, the plaintiff's main lawsuit against the defendants is dismissed. Since the plaintiff's main lawsuit against the defendants is justified, each of them is accepted. The plaintiff's counterclaim against the plaintiff is dismissed as all of the grounds of appeal. It is so decided as per Disposition.

Judges Lower Sang-hoon

Judges Chief Judge

State Regional Environment Office

(b) 407: 61.9 and 603: 63.9 and 904: 63.0 and 63.8: 64.8 and 1002: 57.2 and 1204: 5.0 and 1505: 62.0;

Unit: DB(A)

3) 1-8 and the 15-18 generation, 901-908, 1001-1006, 1101-1102, 1201-1202, 1301-1302;

From 1402 to 1406, Defendant A is included.