Korea

Defendant 1 and two others (Law Firm Han field, Attorneys Nam Nam-ok et al., Counsel for the defendant-appellant)

October 13, 2006

Daejeon District Court Decision 2002Gahap136 delivered on February 3, 2005

1.The judgment of the first instance shall be modified as follows:

A. It is confirmed that the damages liability of the Plaintiff for reasons stated in the separate sheet against the Defendants does not exceed 15,490,000 won per annum from August 9, 2001 to November 10, 2006, and 20% per annum from the next day to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On July 20, 2001, it is confirmed that there is no obligation to pay damages for delay as well as 15,490,000 won based on the arbitration of the Central Environmental Dispute Conciliation Committee on July 20, 201 against the Plaintiff’s Defendants.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. In around 197, the Plaintiff installed the Air Force ○○ Aeronautical Flight Team Air Force Airfield (hereinafter “instant Air Force Base”) in the Seosan-si, Seogri-ri, Seoggu, 1997, and used it as a f16 combat aircraft training site in the Air Force.

B. Defendant 1’s wife, Defendant 3’s wife, and Defendant 3 were their dependents. From around 191 to the end of the north of the instant air base base runway, the Defendants had been engaged in both the raising of approximately 100 ambs and approximately 900 ambs in the ambs of the ambs located in Seosan-si, Seosan-si, approximately 4.5 km from the end of the north of the instant air base runway (hereinafter omitted).

C. (1) On November 16, 2000, the Defendants filed an application for dispute mediation pursuant to Article 16 of the Environmental Dispute Mediation Act on the ground that the Plaintiff suffered property damage caused by aircraft noise generated from the air base of the instant air force base throughout the period from May 2000 to October of the same year by 19 mother money raised in their mother moneys, and the Plaintiffs suffered mental suffering, such as obstruction of water surface.

(2) The Central Environmental Dispute Mediation Committee acknowledged the following facts in full view of on-site investigations, the parties’ statements, expert opinions, etc.

① The air force base of this case is composed of several flight teams and is conducting flight training over several times each day. When a combat aircraft makes a normal landing, the air space in the instant case is flying at the altitude of 1,800 to 2,000 meters, and the air space in the instant case is flying at the altitude of 1,800 to 2,000 meters.

② As a result of the on-site investigation on the noise level of the above two parcels of money, the instant maximum noise level was 76 to 96dB when aircraft take-off and landing, 74 to 84dB when aircraft take-off, and 73 to 83dB when on-board, aircraft noise assessment was presumed to have reached 75WECNL.

③ Although the air force base of this case has a noise control wall and soundproof maintenance room, it was found that there was no soundproof effect in both sides of the area and distance characteristics.

④ According to the “Research on the Criteria for Review of the Relationship of Damage Caused by Noise and Method of Calculating the Amount of damage” published by the Commission in 1997, it appears that the mother money is likely to cause a miscarriage of about 20 to 30% if it is under net large noise stress at 84 to 96dB.

⑤ Meanwhile, according to the “the result of the examination and epidemiological investigation of the disease of Defendant 1’s farm suffering from miscarriage damage by Defendant 1, 200” of the Daejeon and the Chungcheongnam-Namon Livestock Cooperatives veterinary Center on October 10, 200, the causes of miscarriage arising from the above mass farm were presumed to have been presumed to have been presumed to have been presumed to have occurred from the environmental factors, not from the disease, and the existence of other factors that may cause stress to the mother in the surrounding the said mass farm is not confirmed.

6. According to the results of the survey on the production costs of livestock products with the Ministry of Agriculture and Forestry in 2000, annual earnings per 1 head amount is 815,000 won.

(3) On July 20, 2001, based on the above facts, the Central Environmental Dispute Resolution Committee recognized that aircraft noise caused damage to the miscarriage of money in the Defendants’ farm, and decided to pay damages in addition to 15,490,000 won (19du x 815,000 won) and damages for delay calculated at the rate of 25% per annum from the day after the original copy of the adjudication was served on the Plaintiff (the Defendant’s claim for damages against mental suffering was not accepted on the ground that the noise level does not exceed the permissible limit).

[Ground of recognition] Evidence Nos. 1-1, 2, Eul-6 through 8, testimony of the non-party witness of the first instance trial, and the purport of whole pleadings

2. The plaintiff's assertion

It cannot be readily concluded that a miscarriage was caused by aircraft noise that occurred in the air base of this case in the two capitals of the Defendants. Therefore, the Plaintiff is not liable to compensate the Defendants.

3. Determination

In a claim for damages due to a tort, the burden of proof of causation between the harmful act and the damage is generally borne by the claimant, but in a claim for damages due to noise pollution lawsuit, it is very difficult to prove the causal relationship between the harmful act and the damage due to air pollution and the pollution due to water pollution in most cases. As such, in a claim for damages, it is highly difficult to prove the causal relationship between the harmful act and the damage due to the harmful act in nature. Therefore, it might be a result of the actual refusal of judicial relief due to pollution. On the other hand, the perpetrator is highly easy to investigate the cause much much than the victim in technical and economic aspects, so it is sufficient to prove the probability that the result would not have occurred if the perpetrator proves that the result was caused by any other cause than the noise pollution. Thus, the perpetrator cannot be exempted from the liability for damages unless it proves that the result was caused by air pollution and other causes beyond the noise pollution (see Supreme Court Decision 201Da1747, Dec. 27, 197).

In the instant case, in full view of the following facts: (a) the noise generated in the takeoff and landing of a military aircraft in the air base of this case is noise to the extent that it may cause maternitys; (b) the fact that it is presumed that there is stress from environmental factors, not from maternitys, as a result of an epidemiological investigation by veterinary specialists; and (c) there is no environmental factor that may cause stress to maternitys, in addition to aircraft noise in the vicinity of the Defendants’ heads of money, damage to property suffered by the Defendants is caused by noise pollution generated in the air base of this case; and (d) it is determined that the Defendants

Furthermore, as to the damages suffered by the Defendants, the amount of damages is KRW 15,490,00 (19Du 192 x 815,000) as stated in the above facts. Thus, the Plaintiff is obligated to pay damages to the Defendants at the rate of 15,490,000 per annum as stipulated in the Civil Act from August 9, 2001 to November 10, 2006, which is the day following the day when the original copy of the above arbitration was served on the Plaintiff, to dispute the existence and scope of the Plaintiff’s obligation to compensate for damages. The Plaintiff is obligated to pay damages at the rate of 5% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment.

4. Conclusion

Thus, during the period from May 200 to October of the same year, the plaintiff's damage liability against the property damage suffered by the defendants due to aircraft noise in the air base of this case does not exceed the above recognition scope. Thus, as long as the defendants dispute the scope of the above recognition, the plaintiff's claim of this case shall be accepted within the above recognition scope, and the remaining claim shall be dismissed as there is no reason.

The judgment of the court of first instance is unfair with different conclusions, and thus, the appeal of the Defendants is accepted in part and the judgment of the court of first instance is modified as above.

[Attachment]

Judges Kwon Soon-il (Presiding Judge)