[1] The elements for the establishment of joint tort

[2] In a case where the right to enjoy sunshine has been infringed upon by a multiple number of buildings constructed at the same time or at the same time at the same time, whether a constructor of each of the above harming buildings is liable for joint tort (affirmative with qualification)

[3] Whether the determination of the amount of consolation money for mental suffering suffered by a tort is a discretionary matter under the authority of the fact-finding court (affirmative)

[1] In the case of a joint tort under Article 760 of the Civil Code which causes damages to another person, the joint tort does not require not only a conspiracy among actors, but also a common perception. However, if the joint tort is objectively jointly related, it is sufficient that the joint tort is jointly related, and the joint tort which is liable for damages caused by the pertinent joint act is established.

[2] In a case where a Maritime Building constructed at the same time or almost at the same time causes the result of the infringement of sunshine that exceeds the generally accepted limit as a whole, each Maritime Building could have predicted that each Maritime Building would also infringe the sunshine enjoyed of the previous building by the owner, etc. of the damaged building, barring any special circumstance, the constructor, etc. of each Maritime Building shall be liable for all damages suffered by the owner, etc. of the damaged building as a joint tortfeasor, unless there are special circumstances.

[3] The amount of consolation money for mental suffering suffered by tort can be determined by the fact-finding court at its discretion in consideration of all the circumstances.

[1] Article 760 of the Civil Act / [2] Articles 750 and 760 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act

[1] Supreme Court Decisions 81Meu1130 Decided June 8, 1982 (Gong1982, 638) 97Da1848 Decided November 28, 1997 (Gong1998Sang, 54) 96Da5631 Decided June 12, 1998 (Gong198Ha, 1858), 98Da2059 decided November 10, 198 (Gong198Ha, 2836 decided April 11, 2000), 9Da41749 decided April 20, 200 (Gong2000, 2000Da82095 decided September 29, 201)

Plaintiff 1 and 45 others (Attorney Kang Chang-chul, Counsel for the plaintiff-appellant)

Defendant 1, et al. (Seoul Law Firm, Attorneys Yu Sung-hun et al., Counsel for the defendant-appellant)

Busan High Court Decision 2004Na19678, 19685, 19692 decided July 8, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. As to the Defendants’ common grounds of appeal

In the case of joint tort under Article 760 of the Civil Act where several persons jointly inflict damage on other persons, it does not require any joint perception as well as any conspiracy among actors. However, it is sufficient if the joint act is objectively related to the joint act, and the joint tort liability for objection is established as a result of the occurrence of damage by the joint act related to the joint act concerned (see, e.g., Supreme Court Decisions 81Meu1130, Jun. 8, 1982; 9Da41749, Apr. 11, 2000). In a case where a building was constructed at the same time or almost at almost at the same time causes the result of the infringement of sunshine that exceeds the limit of admission as a whole, each tortfeasor of the building shall be liable for all damages suffered by the owner of the building, unless there are any special circumstances.

In full view of the admitted evidence, the court below acknowledged that the first apartment newly constructed by Defendant 1 corporation (hereinafter “Defendant 1”) had commenced on June 7, 1996 and completed the structural luminous construction around December 31, 2002 and obtained approval for use on or around April 24, 2003, and that the second apartment newly constructed by Defendant 2 corporation (hereinafter “Defendant 2”) had commenced construction around December 15, 200 and obtained approval for use after completion of construction around November 22, 2002, and that the first apartment and second apartment were jointly owned or resided by the plaintiffs, and that the first apartment and second apartment were not in violation of the rules of evidence's legal principles as to the facts that it violated the rules of evidence's joint tort, and therefore, the judgment of the court below was legitimate or unreasonable in light of the legal principles as seen above, since the first apartment and second apartment were in violation of the rules of evidence's joint tort.

2. As to Defendant 1’s ground of appeal

A. The court below accepted the appraisal result of the appraisal by the Korea Appraisal Board in the first instance trial and calculated the scope of the plaintiffs' property damage caused by the infringement of sunshine based on the appraisal result. In light of the records, such decision of the court below is acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to calculation of the decline in property value by failing to exhaust all necessary deliberations.

B. In addition, the court below calculated the amount of reduced property value for the plaintiffs who acquired ownership prior to the commencement of the first apartment as property damage caused by the infringement of sunshine, taking into account the following: (a) it appears that the Defendants did not violate the relevant Acts and subordinate statutes, such as the Building Act, and there seems to have been little interference with sunshine due to existing natural obstacles even before the construction of the first apartment and the second apartment; and (b) Defendant 1 appears to have an increase in property value due to environmental improvement by expanding access roads up to the entrance of the first apartment and the second apartment; and (c) Defendant 1 could have an increase in property value due to the improvement of surrounding environment; and (d) the amount of reduced property value for the plaintiffs who acquired ownership after the commencement of the first apartment was reduced by 30% from the decline in property value; and (e) 50% from the decline in property value for the plaintiffs who acquired ownership after the commencement of the first apartment. In light of the records, it is acceptable to the court below's measures, and there is no error of law

C. As to the amount of consolation money for emotional distress suffered by tort, the fact-finding court can determine it at its own discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 98Da41377, Apr. 23, 199; Supreme Court Decision 2002Da43165, Nov. 26, 2002). Examining the records in light of such legal principles, the court below is justified to determine the amount of consolation money for the plaintiffs whose total amount of sunlight hours is less than 10 minutes between 08:00 and 16:00, respectively, and as to the plaintiffs whose total sunlight hours are secured, the amount of consolation money for the plaintiffs whose total sunlight hours are 80,000 won, respectively, and there is no error in the misapprehension of legal principles as to the calculation of consolation money.

3. As to Defendant 2’s ground of appeal

A. In measuring the hours of sunlight, which are the basis for determining the infringement of sunshine, whether it should be based on the bera window, each of the openings of each room or on the basis of the window in Vietnam, shall not be considered as a matter of interpretation of the law, and the issue of whether it should be based on the window in Vietnam, which is a matter of fact directly necessary to determine the legal effect of the creation, alteration, and extinguishment of rights. Thus, the plaintiff and defendant 2 who should be determined on the basis of the window in Vietnam, shall be dismissed, and the decision of the court below to determine whether the sunshine was infringed on the basis of the sunlight, and the decision of the court below to determine whether the sunlight was infringed on the basis of the sunshine cannot be deemed to have violated the principle of pleading, and therefore, the argument in the grounds of appeal disputing this issue

B. The court below rejected Defendant 2’s assertion on the ground that the infringement of sunshine does not exceed the limit of acceptance, even if there is property damage, but if the infringement of sunshine constitutes a tort beyond the limit of acceptance, it shall be deemed that the damages can be claimed for the portion which could not have been claimed if it exceeded the limit of admission among the property damage, and that the damage to the property caused by the infringement of sunshine cannot be readily determined to be proportional to the time of infringement. In light of the records, the court below rejected Defendant 2’s assertion that the amount of decrease in value corresponding to the portion which exceeds the limit of acceptance, among the reduced amount in property value of the Lentra of this case due to the infringement of sunshine, is responsible for Defendant 2, and that there is no responsibility for the decrease in value within the limit of limit of acceptance. In light of the records, the judgment of the court below is proper, and there is no error of law by

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)