[1] Whether noise constitutes interference with daily life under Article 217 of the Civil Act (affirmative), and in a case where noise is suitable for the ordinary use of the adjoining land, whether a neighbor is obligated to accept such noise pursuant to Article 217 (2) of the Civil Act (affirmative)

[2] Criteria and consideration to determine whether the degree of interference with daily life due to road noise exceeds the “limit of interference”

[3] Whether there is a road noise exceeding the environmental noise standard under the Framework Act on Environmental Policy as to noise in a roadside area, and it can be determined that there exists an unlawful infringement exceeding the “limit of participation” (negative)

[1] Article 217(1) of the Civil Act provides, “The owner of land shall have the duty to take appropriate measures so that s/he may not interfere with the use of adjoining land or cause harm to the neighbor’s living, by exhaust gas, heat gas, liquid, liquid, sound, vibration, and others similar thereto.” Article 217(2) of the same Act provides, “If the situation under the preceding paragraph is appropriate for the ordinary use of adjoining land, the neighbor shall have the duty to cite it.” The noise constitutes interference with the daily life stipulated in this provision, and thus, the neighbor is obligated to cite it if the noise is appropriate for the ordinary use of adjoining land.”

[2] In a case where noise generated from a road is suffering from daily life, whether a neighboring resident is obliged to cite shall be determined based on whether the road noise exceeds the level to identify the road noise in light of generally accepted social norms (hereinafter “limit of attendance”). Specifically, this should be determined by comprehensively taking into account all the circumstances such as the nature and degree of damage caused by noise, the public nature of benefits from damage, the type and mode of harmful act, the public nature of harmful act, the prevention measures by the perpetrator or the possibility of avoiding damage, the violation of regulatory standards in public law, regionality, and the priority and priority of land use. Furthermore, as facilities indispensable in modern life, the road is being used as essential factors for regional traffic and balanced development, and the urban development project also provides substantial convenience to the industrial and economic activities of the State, and the traffic of automobiles is taking account of a large part of traffic, and the occurrence and increase of road noise to a certain degree in the reality where the overpopulated housing is under way by urbanization and industrialization, etc. shall also be sufficiently considered.

[3] Since administrative laws and regulations regulating road noise mainly aim at protecting neighboring residents from noise, whether road noise exceeds this standard should be considered to the extent that it should be seen in light of generally accepted social norms (hereinafter “the reference limit”). However, it cannot be readily concluded that there is an unlawful infringement exceeding the reference limit on the ground that road noise exceeds the environmental noise standard under the Framework Act on Environmental Policy on noise in areas on the surface of a road. In a case brought about a cause of road noise, barring any special circumstance, it is reasonable to determine whether apartment residents’ daily life obstruction exceeding the reference limit exceeds the noise standard under the Framework Act on Environmental Policy, rather than the outdoor noise level measured at a place where daily life takes place at a point of noise level from 0.5 to 1 meters away from the windows, entrance doors, or building walls in the direction of the noise source in the direction of the noise source, such as a road, etc., depending on whether the noise level measured by all windows in the direction of the noise source exceeds the environmental noise standard under the Framework Act on Environmental Policy.

[1] Article 217 of the Civil Code / [2] Article 217 of the Civil Code / [3] Article 217 of the Civil Code, Article 12 (1) and (2) of the Framework Act on Environmental Policy, Article 2 [Attachment] of the Enforcement Decree of the Framework Act on Environmental

[2] [3] Supreme Court Decision 2011Da91784 decided September 24, 2015 (Gong2015Ha, 1596)

See Attached List of Plaintiffs (Law Firm Rowon, Attorneys Go Jae-ia et al., Counsel for the plaintiff-appellant)

Changwon-si (Law Firm Multi-Rate, Attorneys Go-won et al., Counsel for defendant-appellant)

Busan High Court (Capwon) Decision 2013Na3128 decided July 24, 2014

The part of the judgment of the court below against the defendant regarding the second preliminary claim shall be reversed, and that part of the case shall be remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 217(1) of the Civil Act provides, “The owner of land has a duty to take appropriate measures so as not to cause smoke, heat gas, liquid, sound, vibration, and other similar things, so that he may not harm or disturb the neighbor’s living or use of the adjoining land.” Article 217(2) of the same Act provides, “If the situation under the preceding paragraph is appropriate for the ordinary use of the adjoining land, the neighbor shall have the duty to cite it.” The noise constitutes a disturbance of living as prescribed by this provision, and thus, the neighbor is obliged to cite it if the noise is appropriate for the ordinary use of the adjoining land.”

The issue of whether a neighbor’s obligation to cite a road noise in the event of suffering from daily life due to noise generated on the road should be determined by comprehensively taking into account all the circumstances, including the nature and degree of damage caused by noise, the public nature of benefits from damage, the type and mode of harmful act, the public nature of harmful act, the possibility of preventing the perpetrator from causing harm or avoiding damage, the violation of regulatory standards in the public law, regionality, and the priority and priority of land use, etc. In addition, as facilities indispensable in modern life, are being used as essential factors for the construction of the road network around the city development project, the traffic of automobiles accounts for a large portion, and the occurrence and increase of road noise in a certain degree falls under changes that can not be avoided due to social development.

Administrative laws and regulations regulating road noise mainly aim to protect neighboring residents from noise, and therefore, whether road noise exceeds this standard should be considered in determining the reference limit. However, it cannot be readily concluded that there is an illegal infringement exceeding the reference limit on the ground that road noise exceeds the environmental noise standard under the Framework Act on Environmental Policy regarding noise in areas on the surface of a road. Barring special circumstances, it is reasonable to determine whether apartment residents are being disturbed with daily life exceeding the reference limit, barring special circumstances, whether apartment residents are being obstructed with daily life exceeding 0.5-1 meters away from windows, entrance doors, or building walls in the direction of noise costs at a living room where daily life is mainly conducted, and whether the noise level measured by opening all windows of the direction of noise source, such as roads, exceeds the noise standard under the Framework Act on Environmental Policy (see, e.g., Supreme Court Decision 91Da1784, Sept. 24, 2015).

2. On the following grounds, the lower court determined that the Defendant, as a manager of the instant road under Article 5 of the State Compensation Act, was responsible for compensating the Plaintiffs for mental damage caused by the noise of the instant road.

(1) The noise level of the instant road measured prior to the approval of the inspection of the use of the instant apartment was more than 65dB (A) or 55dB (A) of the day environmental noise standard as stipulated in the Framework Act on Environmental Policy. As a result of the appraiser’s measurement of noise in the lake room located on the roadside of the instant apartment, the noise level was measured more than 5dB (A) but more than 57dB (A) through 68dB (A). The noise level was measured more than 10dB (A) in most lakes located on the roadside located on the roadside.

(2) The apartment complex of this case is located in Class 2 general residential area stipulated in the National Land Planning and Utilization Act, and there is a high need to protect the residential environment of residents.

(3) Even though the Defendant was aware of the noise-related problem, there was no evidence to prove that there was an investigation, plan, or implementation of noise reduction measures other than the installation of a speed prevention camera from the date of approval of the inspection of use until the instant lawsuit was filed, and only after the instant lawsuit was filed, the Defendant examined the “road Traffic Noise Impact Assessment and Measures to Reduce” and submitted a report.

(4) Comprehensively taking account of such circumstances, there was a defect in the construction and management of the instant road, and thereby, the noise level of the Plaintiffs’ residential areas exceeded the noise level in the general residential area stipulated in the Framework Act on Environmental Policy and exceeded the permissible limit under the social norms.

3. In recognition of the Defendant’s liability for damages, the lower court accepted the noise level set up and measured by the appraiser in the direction of the road of this case by protruding out the microphone of the noise measuring instrument from the bend window of the apartment of this case, and the level of outdoor noise calculated on the basis thereof.

However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the lower judgment and the record, the following facts are revealed. In other words, among the roads of this case, 25 national highways began to be used on August 30, 2002, and 2 national highways began to be used on January 19, 2004. However, the apartment of this case was approved on May 28, 2004, and the buyer began to move in with approval for use on August 31, 2006. The Plaintiffs knew or could have known a certain degree of road noise occurrence and increase at the time of residing in the apartment of this case.

In addition to the interests of the people living in multi-family housing, the road of this case, which forms an important axis of the motor vehicle traffic network, is highly valuable to its public nature and social value by publicly announcing the basis of the overall regional economy and improving the quality of their living. Since noise is inevitable due to the operation of the motor vehicle on the road of this case, the residents living in the vicinity of the road should be identified to a certain degree of such noise. Most residents living in the city due to urbanization and industrialization and over-populated residence, begin to reside in a specific place in the situation where a certain degree of noise exists, and all residents living in the city are able to enjoy a pleasant and pleasant daily life at a specific place and begin to be formed on the basis of noise level when they start their dwelling. As seen above, it is difficult to readily conclude that the outdoor noise level recognized by the court below by the plaintiffs as above in each household living in the apartment of this case, which is located in the plaintiffs, is beyond the noise level standard of open noise in light of the Framework Act on Environmental Policy. Therefore, it is reasonable to recognize that it exceeds the noise standard of noise level from the plaintiffs.

4. Therefore, the lower court should have determined whether the Defendant is liable for damages, taking full account of the above circumstances, and recognized the Defendant’s liability for damages without measuring the noise level at the point where the Plaintiffs’ daily lives mainly take place, and without taking due account of the follow-up relationship with the land use. In so determining, the lower court erred by misapprehending the legal doctrine on the limit of participation in interference with daily life due to road noise, thereby failing to exhaust all necessary deliberations, which affected

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendant regarding the second preliminary claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Poe-young (Presiding Justice)