207 Ma3441 Damage, Claim

1. A (58 years old, female);

2. B (39 years old, South Korea)

3. C (49 years of birth, South Korea)

4. D (47 years old, South Korea)

5. E (56years, Residuals).

6. F (52 years old, South Korea).

[Judgment of the court below]

School Foundation X-Institution of Education

Law Firm Doz.

Attorney Lee Jae-won

July 24, 2008

August 21, 2008

1. The defendant shall pay to the plaintiff C, the plaintiff D, E, and F 2,50,000 won each, and 3,500,000 won each, and 5% per annum from January 12, 2008 to August 21, 2008, and 20% per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 1/5 are assessed against the Plaintiffs, and the remainder are assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 8,00,000 won with 5% interest per annum from the day following the delivery of the complaint of this case to the day of the pronouncement of this case and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The plaintiffs occupy the housing of this case as stated in the column of "the status of possession" and "the status of possession" in the table of "number occupation" as the owners of the housing of 2 to 3 stories on each of the lands above the 2nd general residential area (the area necessary for creating a convenient residential environment centered on the middle-class housing), Busan, the main residential area (hereinafter referred to as "the housing of this case").

B. As a school juristic person operating X University, the Defendant newly constructed a 5th class kindergarten, 6th class cultural center, 7th class library, 8th class living room, and 13th class dormitory building (hereinafter “Defendant building”) on the ground of the 6-meter road south of the street where the instant building adjoins south of the south.

【Evidence for Recognition】 1-1, 3 through 7, 2-1, 4, 5, 6, 3-1 through 5, 8, 5-1, 5-2, 6-1, 7-1, 2, 7-2, and 8-1, 5-2, 6-1, 7-1, 2, and 8-2, on-site inspection result, appraiser K’s appraisal (hereinafter “the result of sunshine, view, and privacy”) and the Plaintiff’s assertion on the whole pleadings;

The plaintiffs claim that since the right to enjoy sunshine, view right, and privacy which have been previously enjoyedd due to the construction of the defendant building is infringed beyond the tolerance limit, the defendant is responsible for compensating the plaintiffs for mental damage.

3. Determination as to the liability for damages

A. Claim for damages due to infringement of right to sunshine

(1) In a case where a resident on the adjoining land suffers a disadvantage that a direct luminous line is cut off due to the new construction of a building, the degree of sunshine should exceed the generally accepted tolerance limit under the generally accepted social norms in order to be evaluated as an illegal and harmful act beyond the scope of legitimate exercise of right. Whether the obstruction of sunlight exceeds 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 use of the damaged interest and its social evaluation, the purpose of the damaged building, the regional nature, the right to use the land, the possibility of preventing and avoiding damage, the possibility of a violation of regulations under the public law, and the progress of negotiations (see, e.g., Supreme Court Decision 2003Da6460

(2) Considering the various circumstances shown in the argument of this case and the general residential form of urban areas, in the case of the housing of this case, if the total sunlight hours during the eight hours from 8 A.M. to 4 P.M. (hereinafter referred to as "total sunlight hours") during the eight hours between 8 P.M. and 4 P.M., or if the continuous sunlight hours during the six hours between 9 A.M. to 3 P.M. (hereinafter referred to as "hour hours") during the six hours during the six hours from 9 P.M. as of the wintering day are continuously secured, it is reasonable to view that the total sunlight hours during the eight hours during the eight hours from 8 P.M. as of the wintering day exceeds the tolerance limit, and in the case of the sunlight

(3) In full view of the purport of the entire arguments as a result of appraisal, it is as follows: (a) whether the windows on each floor of the instant housing have been secured for more than four hours of sunlight and more than two hours of sunlight based on the same day after the new construction of the Defendant building before and after the new construction of the Defendant building; and (b) the total hours of sunlight are as shown in the list of “the possession status and the hours of sunlight.”

According to the facts of recognition, since the housing of the plaintiffs residing in this case is secured at least 4 hours in total, 2 hours in succession, or one of the two hours is secured, and no one is secured due to the construction of the defendant building, the plaintiffs are subject to illegal sunlight infringement exceeding the tolerance limit due to the construction of the defendant building (However, in relation to the third floor living in the plaintiff E, it is not necessary to secure at least 4 hours in total, 2 hours in succession, and 2 hours in relation to the remaining window before new construction as stated in the status of possession and the list of sunshine hours, and at least 4 hours in succession, and at least 2 hours in line with the trend windows of the plaintiffs living in the living room, and at least 4 hours in total, 2 hours in succession, or 2 hours in succession have not been secured for the window windows of the defendant's living in the living room, even if they have not been secured for the total sunlight or 2 hours in succession, the defendant has no reason to secure the tolerance limit of the plaintiff's living in the remaining part of the building.

B. Claim for damages due to infringement of view right

(1) If it is objectively recognized that the owner of a certain piece of land or a building has the value of a view that he or she has previously enjoyed, such benefit of view can be legally protected, and in principle, such benefit of view is legally protected only when a specific place has special value in viewing the outside from such place, and it is recognized that the owner or possessor of a building has the importance to the extent that the benefit of the view that the benefit of the view that he or she has enjoyed from the building has to be approved as the independent benefit of social norms, such as the case where the building is constructed for one of the important purposes, and it cannot be legally protected in the case of benefit of view that does not reach such a degree (see, e.g., Supreme Court Decision 2004Da54282, Jun. 28, 2007).

(2) In full view of the purport of the entire arguments, the view rate in the instant house was reduced by the construction of the Defendant building, and in particular, the degree of decrease in the view rate is 93% in the case of the Plaintiff’s residential housing, 84% in the case of the Plaintiff’s residential housing, and 88% in the case of the Plaintiff’s residential housing, but there is no evidence to prove that there was a special value in view of the exterior of the instant housing before the construction of the Defendant building, or that there was a benefit of view from the construction of the instant housing for the purpose of enjoying the view benefit to the extent that the Plaintiffs legally protected from the instant housing, without any reason.

C. Claims for damages due to privacy infringement

(1) Considering the overpopulated population of a large city and the tendency of high density and high density of a building for efficient use of land, it is inevitable to bring about a certain degree of privacy infringement to a common social life. Thus, the construction of the building in question is illegal only when the degree of privacy infringement on an adjacent building is considerably high and exceeds the tolerance limit under the social norms.

(2) In full view of the purport of the argument as a result of appraisal, the person’s face’s maximum distance is about 12 meters, 24 meters, and 135 meters, and the maximum distance between the opening part of the defendant’s building’s main living room is about 17 meters in the case of the plaintiff’s residential house, about 14 meters in the case of the plaintiff’s residential house, about 43 meters in the case of the plaintiff’s residential house, about 46 meters in the case of the plaintiff’s residential house, about 46 meters in the case of the plaintiff’s residential house, about 5 through 13 meters in the case of the plaintiff’s residential house, and about 19 meters in the case of the plaintiff’s residential house, and about 5 to 13 meters in the case of the plaintiff’s residential building, the defendant’s building adjoining the road of this case and thus, the defendant was found not liable for damages to the plaintiff’s private life.

4. A person who is residing in a building where the scope of compensation for damages exceeds the limit of tolerance and infringement of private life is subject to inconvenience and considerable mental suffering due to the aggravation of his living environment in light of the empirical rule. Therefore, the defendants are liable to pay consolation money for mental suffering to the plaintiffs.

Furthermore, with regard to the specific consolation money that the defendant should compensate, the following circumstances are considered: (a) the housing of this case is located in the Class-II general residential area where the residential environment is created centered on the middle-class housing; (b) sunshine and interference with private life due to the construction of the defendant's building; (c) the distance between the housing of this case and the defendant's building; and (d) the current status of the use of the housing of this case as indicated in the arguments of this case, it is reasonable to determine the amount of consolation money as KRW 4,50,000 for the plaintiff C and the defendant, and KRW 3,50,000 for the plaintiff B, respectively.

5. Conclusion

Therefore, the defendant is obligated to pay the plaintiff C and A with 4,500,000 won, the plaintiff D, E, and F each of the above amounts of KRW 2,50,000,000 for each of the above amounts of KRW 3,500,000, and damages for delay calculated by the rate of 5% per annum from January 12, 2008 to August 21, 2008, the day following the delivery date of the complaint of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., from the next day to the day of full payment. Thus, the plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as it is so decided as per Disposition.

Judge Kim Gin-hun