[1] Whether the right to view the construction of another high-rise building can be asserted in a case where a high-rise building is constructed in a flat where a view is not visible (negative)

[2] In a case where there is no explicit provision that recognizes the environmental right as a private right, whether the right to claim for the removal of disturbance can be acknowledged based on the environmental right (negative)

[3] The public nature of the benefits to be considered in assessing the illegality of the act of constructing a new building

[4] The case holding that even if a high-rise complex building is newly constructed in a general commercial area between an apartment complex and a road of 15 meters in width, damage caused by sunshine and lighting of apartment occupants is within the limit of the number of damage

[1] In a case where a special facility is artificially located in an ordinary area, that is, where a high-rise building is constructed in a flat where a view is not visible and a view is able to view an area, a view right cannot be claimed even if a view right is obstructed by the construction of another high-rise building.

[2] Article 35 of the Constitution of the Republic of Korea on environmental right cannot be viewed as directly giving specific rights to individual citizens. To recognize environmental rights as a private right, the subject, object, content, and method of exercising the rights must be established specifically in light of the purport and reasoning of the relevant statutes. Thus, unless there are grounds under such specific statutes, the prohibition of infringement should not be claimed immediately on the ground that environmental interests were infringed.

[3] In a civil provisional disposition trial centered on the protection of an individual's private right, unless there are special circumstances, the benefits of the public or a third party, such as the benefits and environmental interests of the public or the general public, cannot be considered as a preserved right based on the provisional disposition (such interests of the public or the residents, i.e., the interests of the public or the residents, i.e., the consideration of the public, should first be taken into consideration in the process of performing public duties of the public officials whose duties are to serve for the public interest, and in this case, an urban design deliberation, traffic impact assessment deliberation, and building permission deliberation, etc. In addition, it is difficult to consider in the administrative court to judge the legitimacy thereof, and it is difficult to regard it as a secondly in the civil procedure. However, in assessing whether a new building constitutes an illegal harmful act against others under the private law beyond the scope of legitimate exercise of right, the public nature of the benefits should also be determined, for instance, whether the damaged building is a school or hospital itself or not.

[4] The case holding that even if a high-rise complex building is newly constructed in a general commercial area with a height of 15 meters between an apartment complex and a road with a width of the 15 meters, damage to the sunshine and lighting of apartment occupants is within the scope of the water.

[1] Articles 211 and 214 of the Civil Act, Article 714 of the Civil Procedure Act / [2] Article 35 of the Constitution / [3] Article 714 of the Civil Procedure Act / [4] Articles 211 and 214 of the Civil Act, Article 714 of the Civil Procedure Act

[2] Supreme Court Decision 94Ma2218 delivered on May 23, 1995 (Gong1995Ha, 2236) Supreme Court Decision 98Da47528 delivered on July 27, 199 (Gong199Ha, 17555)

Maju and 117 others (Attorney Kang Dong-young, Counsel for the defendant-appellant)

Korea Industrial Development Co., Ltd. and one other (Law Firm International Law Office, Attorneys Lee Won-chul et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 97Kahap9776 delivered on September 15, 1998

1. The judgment of the court below is revoked.

2. The applicant's motion is dismissed

3. The costs of the lawsuit shall be five-minutes through the first and second trials, and these two-minutes shall be borne by the respondent, and the remainder by the applicant, respectively.

The respondent shall not construct a building with at least 20 stories on the same 1432 large 6,700 square meters, 1432 large 6,933.2 square meters and 1432-2 large 6,668 square meters and above the same 1432-2 large 6,668 square meters, or use the above land for this purpose.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or the evidence Nos. 1, 2, 3, 3, 8, 1, 5, 11, 20, 30, 1, 2, 6-1 through 5, 7-1 through 6, 7-1 through 6, 22-1 through 4, 2, 3, 5, 8-3, 5, 12-1 through 8 of the evidence Nos. 7, 7, 7-1 through 6, 22-1 through 3, 5, 5, 12-1, 2, 7-1 through 8 of the evidence Nos. 7, the testimony of the court of the first instance, the result of the on-site verification of the witness seals by the court of the original judgment and the head of the Busan Metropolitan City/Seoul Metropolitan City of the court, and the result of the fact-finding on the head of the shipping Gu of Busan Metropolitan City.

A. (1) On December 190, 1990, the applicants were sold in lots and have been residing up to now since March 1992, and (2) damaged apartment units are 45 meters in height, and almost little trends (20∑ 202,204,205,207, and building status) in the complex as shown in the annex No. 1 (the building status), while the applicants were designated as the building site of the building area of the 201,202,204,205,207, and the building site of the building area of the building area of the building area of the 1992.

B. In front of the damaged apartment site, that is, there are land (attached Form 2, hereinafter referred to as the “instant land”) located in the purport of the application to be owned by Busan Metropolitan City (hereinafter referred to as the “Simsan City”) with a boundary of the damaged apartment site and a road of 15 meters wide. This land is designated as a general commercial area in the urban planning and a specific use district as an urban design district, respectively.

C. On October 22, 1996, the respondent purchased the land of this case in the amount of KRW 36.5 million on the condition that the price is paid in installments from Busan City on October 22, 1996 and paid part of the price, and as shown in attached Form 1, the main complex of six super high-rises such as the size, use, etc. (the main complex building, which is the building of this case, is the building of this case; hereinafter referred to as the "building of this case") in the main complex of six super high-rises such as the size, use, etc. (the main complex building of this case, which is the building of this case) with the approval of the use of Busan City.

D. Accordingly, the respondent has completed all the prior deliberation procedures required by the relevant statutes, such as (1) from Busan City to April 18, 1997, (2) approval of urban design (Seoul City Building Committee), passing through energy saving deliberation on May 9, 199, (2) passing through the rescue deliberation on June 13, 199, and obtaining approval of traffic impact assessment on October 30 of the same year, and (2) the owner of the building shall be the respondent and the contractor shall be the owner of the building as consideration industry development by the head of the maritime transportation unit having jurisdiction over October 23 of the same year, and reported the commencement of new construction works on December 2 of the same year.

E. The size, use, etc. of the instant building that the respondent intends to newly construct are as follows.

(1) Six independent tower-type buildings with a height of at least 67.5 meters and maximum of 110.3 meters, namely, A, 32, B-1 Dong 36, B-2 Dong 37, B-3 Dong 25, Cdong 28, officetels (O/T) 18 floors are in line with annexed drawings, and underground floors are linked to one of the five floors.

(2) Main purposes are apartment houses, sales facilities, business facilities, and sports facilities. Underground floors are mainly parking lots, sales facilities, sales facilities, business facilities, sports facilities, officetels from the third floor to the third floor, business facilities for apartment houses, and large-scale apartment houses with a total of 600 households of a total of 50 to 75 square meters (main ratio: 67.37%: 32.63%).

(3) The building-to-land ratio is 39.12% of the building volume ratio, 627.94% of the building area, 7,941.655m2 of the building area, 209,856.049m2 of the total floor area, and 82,376.52m2 of the underground area, and the structure is a reinforced concrete brick structure and steel-framed reinforced concrete structure.

F. The damaged apartment site and the land in this case are part of the land created by the waterside reclamation work. The waterside reclamation work is executed on July 27, 1982 by Busan City with the approval of the reclamation project on July 27, 1982 for the yacht stadium, the construction of international amusement complex, the construction of the housing site and the resolution of the housing site shortage. The construction work was completed on April 23, 1988 with the approval of the reclamation project on April 23, 1988, commercial areas of 340,000 square meters in total, 160,665 (Yol Stak Stak Stak Stak Stak Stak Stak Stakak, 40,868, urban design district, 119,797) and 179,335 square meters in residential areas in the above urban design district, with the approval of the Minister of Construction and Transportation for the efficient utilization of the urban environment and urban landscape, and most of the above urban landscape and urban development standards were implemented.

G. The instant land is located at the shores of the Shipping Zone, Bathing Beach, and the two roads passing along the two sides of the instant land are the major access roads entering the Shipping Zone, Bathing Beach, and East Dog Island within the Busan City.

H. On August 31, 1994, the shipping beach and bathing beach are designated as a tourist destination pursuant to Article 2 of the Tourism Promotion Act, and on August 31, 1994, the special tourist zone was designated pursuant to Article 23-2 of the same Act. In particular, it is designated as a dry field amusement park and Dongbag Island as a neighboring park under Article 22 subparagraph 2 of the Urban Park Act.

I. Since September 197, the resident of the damaged apartment building came to know of the information about the construction plan of the building of the building of this case, it was tried to block the building permit of this case by opposing the construction of the building of this case due to the right to sunshine, view, right to view, infringement of living, noise, dust, environmental destruction, etc. of the damaged apartment building from the name of the Busan Si and the Respondent and the Construction Party of the Construction Party of the Construction Agency, which is the government agency related to the building permit, and by urging the Mayor of Busan and the Respondent to correct it. On November 10 of the same year, 1997, the resident of the damaged apartment building knew of the information about the construction plan of the building of this case. The resident filed an application for the provisional disposition of this case on December 19 of the same year.

2. The applicant's assertion and judgment

A. Summary of the petitioner's assertion

(1) In the event that a building for the same size and use as the building of this case is constructed on the land of this case, the applicants may infringe upon the benefits or rights as set forth in the sub-paragraph (2) (a) below, and thus, may prevent the respondent from constructing the building of this case based on the rights as set forth in sub-paragraph (2) (b) below, and the respondent filed an application for provisional disposition against the respondent seeking prohibition against construction of 20 or more floors among the new construction works of this case.

(2) In other words, the claimant's assertion on the basis of the provisional disposition in this case is about (a) infringement interest, (b) infringement interest, and (c) the applicant's right to sunshine that he or she had previously enjoyed when the building in this case was newly constructed, and the shipping beach that is the light of the right to view the sea of Doglung Island and Doglung River, which is the light of the right to sunshine that he or she had previously enjoyed, shall be damaged. (b) Dur the construction period, the applicant is exposed to various high seas, such as noise, vibration, dust, dust, etc., which are generated in the process, and the high depth of the underground up to five (5) infringement of the right to pursue happiness is likely to cause damage to the apartment in this case. (d) The applicant's right to be protected by the Constitution or the right to be protected by the environment of the above area is not likely to be infringed by the long-term infringement of the right to be protected by the environment of the above area. (e.g., the applicant's right to use or height of the building in this case.

(b) Markets:

(1) As to the infringement of right to enjoy sunshine

(A) The securing of sunshine is an essential life benefit for the improvement of human welfare and the maintenance of health and legal protection. In such a case, the right derived from the ownership of the residence or the general personal right can be deemed as the content of the right. Thus, in a case where the right to sunshine is violated by a third party, if the degree of damage exceeds the generally accepted limit in the social life and it is difficult to recover ex post facto by means of damage compensation, it can seek a provisional disposition seeking the prohibition of the perpetrator's act of infringement as a temporary measure to preserve it.

(B) Furthermore, the petitioner's assertion based on the right to light is not acceptable for the following reasons, because the damaged apartment building was first constructed as set forth below, and if the building of this case is constructed, it cannot be denied that the damaged apartment building will cause sunshine damage to a certain extent. However, in the case of this case, it is difficult to view that the degree of damage exceeds the applicant's tolerance limit as stated below.

1) First of all, if the building of this case is constructed on the 3rd anniversary of the specific extent of damage from sunshine that might be excessive to the apartment, 2 third to 4 second to 20 minutes of the building, 20 minutes of the building, 3rd to 20 minutes of the building, 3rd to 4 minutes of the building, 20 minutes of the building, 20 minutes of the building, 20 minutes of the building, 20 minutes of the building, 3 minutes of the building, 4 hours of the building of this case, 20 minutes of the building of this case, 20 minutes of the building of this case, 3 minutes of the building of this case, 4 hours of the building of this case, 20 minutes of the building of this case, 20 minutes of the building of this case, 3 hours of the building of this case, 4 hours of the building of this case, 3 hours of the building of this case, 4 hours of the building of this case, 20 hours to 20 minutes of the building of this case.

② However, according to the supporting materials and arguments as above 1. It is proved that the building in this case was not in violation of the provisions of Article 53 of the Building Act, Article 86 of the Enforcement Decree of the Building Act, and Article 46 (2) 1 of the Busan Metropolitan City Building Ordinance, and that there was no violation of the construction-related Acts and subordinate statutes in the floor area ratio and building-to-land ratio. In other words, the building in this case is a major complex building constructed in the commercial area and the building in this case is constructed only for damages only, i.e., the building in this case was constructed for the commercial area. The building in this case was constructed for 25th and 28th, and the building in this case was the most adjacent to the building in this case, and the building in this case was located for 37th and the building in this case which is the highest height among the buildings in this case should not be seen as 10th and the building in this case should be seen as 6th and the building in this case's new 6th and new 6th of the Building Act.

(2) As to the infringement of view right

(A) The view function as an impact factor affecting the residential environment, and the fact that the area where the natural environment resources with rich shipping cost are distributed is an open space, and in full view of the result of the on-site inspection by the court of the original instance, it cannot be denied that where the building of this case is constructed, the considerable part of the view that the applicants enjoy should be infringed.

(B) However, even if the right to view is acknowledged as the petitioner's assertion (i.e., special facilities in an ordinary area, i.e., where a high-rise building has been artificially constructed in a flat where the landscape is not visible, and a view in an area where it is possible to view such view can not be asserted even if it is obstructed by construction of another high-rise building), according to the supporting materials in the above (a) where the right to view is acknowledged, among the landscape of the shipping boat that can be seen in the damaged apartment complex, it seems to interfere with the view by considering the building in this case among the landscape of the shipping boat that can be seen in the damaged apartment complex, it is difficult to view that the applicant's view is only limited to the part of the East island, Solod field amusement park and the sea area adjacent to the shipping boat, and it is hard to view that the applicant's view of the marine bathing beach itself has been infringed, and it is hard to see that there is no other evidence as the petitioner's ground to view it as a permanent view (in particular other adjacent buildings and land).

(3) Other damages

(A) Comprehensively taking into account the assertion about noise, vibration, dust, underground excavation, etc. generated in the course of the new construction of a building as to the applicant’s damage to the building, the respondent’s previous purport of pleading is to examine and analyze noise, vibration, dust, and ground subsidence, etc. that may occur during the construction of the building in this case by using a professional engineer of civil engineering structure around October 197, and to establish separate soundproof walls at a point below 100 meters away from the apartment site and to ensure that the applicant’s automatic noise-proof measures within the range of 20 meters away from the construction site are not to be taken within the scope of e-mail standards, and as a result, noise and vibration are not to exceed a little standard for construction regulations, to install separate soundproof walls at the noise-generating area and noise expected area of the building in which the applicant’s automatic noise-proof method is not to be taken within the range of 100 meters away from the apartment site and to ensure that the air level of the construction site is not to be established within the range of 3 meters from the construction site.

(B) Although it is clear in light of the empirical rule that the traffic congestion caused by the excessive traffic volume increase is considerably increased when the instant building is completed, approval was granted in the traffic impact assessment deliberation related to the construction of the instant building, as stated in the reasoning of Section 1. D., however, there is no sufficient evidence as to the fact that the traffic congestion caused by the surrounding apartment area significantly exceeds the applicants’ tolerance limit (in short, the statement of Section 10 No. 10 alone is insufficient). Accordingly, the applicants’ assertion on this point is without merit.

(4) As to the infringement of environmental rights

Among the claims in the above A. (2), even though it appears that the applicants cited specific environmental rights based on the provisional disposition in this case, it is difficult to view that the provisions of Article 35 of the Constitution on environmental rights directly provide specific judicial rights to individual citizens. In order to recognize environmental rights as a private right, the subject, object, content, method of exercise, etc. of rights must be specifically established (Supreme Court Order 94Ma218 dated May 23, 1995). Thus, unless there are specific grounds under the above specific Acts and subordinate statutes, the applicants cannot seek a prohibition of infringement on the basis of environmental rights on the ground that environmental interests were infringed, and therefore, this part of the applicants' assertion is without merit.

(5) As to the public or the public interest

(A) Examining the claims of the applicants, if the right to view the shipping beach from another point of view of the shipping zone from the other point of view of the shipping zone, the right of view of the general public is infringed (related to paragraph (2) above), or the general public is damaged due to traffic congestion (related to paragraph (3) (b) above), and if the construction of the building of the building of the case causes environmental destruction to the shipping zone, such as where the value of the shipping beach as the light of the benefits of the general public is severely damaged due to the construction of the building of the building of the case, such public or general public interest should be considered as the basis of the provisional disposition of the case, or at least should be fully reflected in the determination of the legitimacy of the provisional disposition.

(B) In full view of the materials as indicated in the above paragraph 1. and evidence Nos. 22-1 through 4 as well as the whole purport of the pleading as to the construction of the building in this case, the construction of the building in this case can be seen as the location, size, use, height, etc. of the building in light of the general public’s view as to shipping and bathing beaches, and may cause damage due to traffic congestion. Building permission for the building in this case is not in line with the development direction of the General Tourism Development Plan of the Daegu Maritime Affairs and Fisheries established on February 1995 (i.e., the Si design district of Suwon-do reclaimed land is planned to include the largest large-scale artificial recreation, amusement, cultural welfare, distribution, and accommodation, and to create a unique amusement space based on the background of the ocean by securing green buffer green belt spaces, and to newly construct the highest level of multi-unit housing and to have it constructed as a tourist destination with the form of the building in this case, its proportion to the construction permission in the process of construction permission and its neighboring public interest among the parties and the construction.

However, barring any special circumstance in the civil provisional disposition trial centered on the protection of an individual's private right, the benefits of the public or a third party, such as such public interest and environmental interest of the general public, cannot be considered as the preserved right based on the provisional disposition by its nature (i.e., the interests of the general public or citizens or residents, i.e., the public interest consideration should be taken into consideration first in the process of performing public duties by the public officials whose duties are to serve for the public interest, and in this case, the deliberation of urban design, traffic impact assessment and building permission, etc. In addition, the second issue should be considered in the administrative court's determination of legitimacy, and the second issue should not be considered in the civil procedure, and the public nature of the benefits of damage should also be determined in assessing whether the new construction of a building goes beyond the scope of legitimate exercise of rights and constitutes illegal harmful acts against others under private law. However, it should not be considered as the public nature of the benefits of damage, for instance, whether the damaged building is a school or hospital itself or not.

(C) Accordingly, we cannot accept the applicant’s assertion based on the public interest, etc.

3. Conclusion

Therefore, the applicant's application of this case shall be dismissed as it is without merit, and the judgment of the court below is unfair as it cites the applicant's application, and it is so revoked and dismissed the applicant's application. It is so decided as per Disposition.

Judges Gangwon-gu (Presiding Judge)