205Da72492 Compensation for Damages

1. Kim (155 persons);

Namyang-si

[Defendant-Appellant]

The lawsuit taking over of the merged construction corporation

Construction Co., Ltd. (formerly: T Industry Development Co., Ltd.)

Seoul

Fixed representative director

Law Firm CDA, Attorney Song-soo, Counsel for the plaintiff-appellant

Seoul High Court Decision 2005, 200456457 Decided October 28, 199

September 7, 2007

All appeals and supplementary appeals are dismissed.

The costs of appeal and supplementary appeal shall be borne by each party.

The grounds of appeal and the grounds of incidental appeal are examined.

1. Judgment on the plaintiffs' appeal

A. As to the ground of appeal No. 2, in a case where a resident on a neighboring land suffers a disadvantage that a direct luminous line is cut off due to the new construction of a building, if the new construction of a new building goes beyond the scope of legitimate exercise of right and is evaluated as an illegal harmful act in private law, the degree of the sunshine interruption goes beyond the generally accepted tolerance limit under the generally accepted social norms. Whether the obstruction of sunlight goes beyond the tolerance limit under the generally accepted social norms should be determined by comprehensively taking into account all the circumstances such as the degree of damage, the nature of the damaged interest and its social evaluation, the purpose and characteristics of the damaged building, the use of the damaged building, the priority relationship of the land use, the possibility of preventing damage and avoiding damage, the possibility of a violation of regulations under public law, and the progress of negotiations (see Supreme Court Decision 2003Da64

According to the reasoning of the judgment below, the court below presumed that in light of the tendency of high-riseing of buildings for overpopulated population and efficient use of land in large cities, in the case of apartment houses such as apartment houses, the sunlight hours between 9:00 a.m. and 3:0 p.m., are continuously secured for at least two hours, or in case where the sunlight hours are secured for at least four hours in total during the eight hours from 8:0 a.m. to 4:00 p.m. based on the winter site, the court below dismissed the claim for damages caused by the infringement of sunshine against the plaintiffs within the scope of the above tolerance limit pursuant to the result of appraisal by the appraiser of the first instance trial (the continuous sunlight hours per household and the total sunlight hours per household).

According to the above legal principles, although the reasoning of the court below on this part is somewhat inappropriate, in determining whether the obstruction of sunlight exceeds the tolerance level under the social norms, the court below's conclusion on whether the reduction of sunlight hours for each household of the damaged building after the new construction of the damaged building is the most important standard, and even considering all other circumstances indicated in the records in this case, it is acceptable to accept that the court below's conclusion on whether the reduction of sunlight hours for each household of the damaged building exceeded the tolerance level under each household, and there is no error of law by misunderstanding the legal principles on the scope of the obligation

B. The grounds of appeal Nos. 1 and 3 can be legally protected if it is objectively recognized that the landscape or view which the owner of a certain land or a building has enjoyed from the previous one has the value as a single living benefit. Such benefit of view has special value in viewing the outside from the place. Such benefit of view, in principle, is legally protected only in a case where the owner or possessor of a building deems that the benefit of view that is enjoyed from the building has the importance to the extent that it should be approved as an independent benefit under social norms, such as the case where the building is constructed for one important purpose, and it cannot be legally protected in the case of benefit of view that does not reach such a degree (see Supreme Court Decisions 2003Da64602, Sept. 13, 2004; 2004Da54282, Jun. 28, 2007, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, in particular, Hyundai Amart, which is owned by the plaintiffs, is an apartment located in a general residential area in a downtown, and its site was not located in a place lower than about 8 meters away from the original apartment site in the Han River site, but it became possible for the plaintiffs to enjoy the benefit of the view only when it was constructed by the high-rise apartment, and the high-rise apartment was allowed to enjoy the benefit of the view. Accordingly, the benefit of the view that the plaintiffs can artificially construct and enjoy the high-rise apartment in the ordinary area is not legally protected. Ultimately, it is difficult to find that the plaintiffs' right to enjoy the view has special value in view of the Han River from its place and it is important to the extent that the benefit of the view is to be approved as the independent benefit under social norms. The judgment of the court below is justifiable in light of the above legal principles and there is no violation of law by misapprehending the legal principles as to

C. Regarding ground of appeal No. 4

The court below, based on the evidence adopted in its decision, found facts as stated in its decision, and it is just to determine that a construction company suffered physical and mental damage beyond the limit of admission due to noise, dust, and vibration generated in the course of performing the new construction of this case, and there is no violation of law such as misunderstanding of legal principles as to tort liability due to noise, dust, and vibration, or failing to exhaust all necessary deliberations.

2. Judgment on the defendant's supplementary appeal

A. As to the ground of incidental appeal No. 1, in a case where the owner of a house or apartment on the adjoining land suffers from a sunlighting disability that goes beyond the tolerance limit due to the construction of a new building, and the pressure reduction due to the view of the view (e.g., the loss of opening the door) goes beyond the tolerance limit, it is necessary to assess not only the sunshine disability but also the reduced arm's length price which has a proximate causal relation with the loss of opening the door, etc. in calculating damages caused by the infringement of living benefits, such as pressure due to sunshine, and the pressure due to the view from the view of view (see Supreme Court Decision 98Da23850, Jan. 26, 199).

In the same purport, the court below is just in considering not only the fall of the market price due to the infringement of sunshine but also the fall of the market price due to the loss of opening, and there is no error of law such as misunderstanding of legal principles as to the establishment of tort liability due to the infringement of sunshine and the loss of opening, or incomplete deliberation.

B. Upon examining the records in light of the above legal principles, the court of fact-finding as to the amount of consolation money for emotional distress suffered by tort No. 2 shall determine it at its own discretion, taking into account all the circumstances (see Supreme Court Decision 2005Da47014, 47021, 47021 (Joint) and 47038 (Joint) on January 26, 2006). The court below held that the plaintiffs who continued to reside in a household, the violation of sunshine at the time of completion of the foundation construction of the apartment of this case, are liable to pay consolation money for such emotional distress, and further, the court below's determination of the court below is just, and there is no error in the misapprehension of legal principles as to tort liability due to the infringement of sunshine, etc.

3. Conclusion

Therefore, all appeals and supplementary appeals are dismissed, and the costs of appeal and supplementary appeal are borne by each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan

Justices Kim Yong-dam

Justices Park Si-hwan

Justices Park Il-il