Where a household that has purchased an apartment unit is under the infringement of sunshine, view, and privacy which exceeds the limit of admission and the seller fails to notify the specific information on it at the time of sale, the case holding that the seller is liable for damages not to perform his/her obligation under the good faith principle in accordance with the sale contract, and ordering the seller to compensate for damages equivalent to 90% of the value decline compared to the arm's length price

Where a household that has purchased apartment units is under the infringement of sunshine, view, and privacy which exceeds the limit of admission and the seller fails to notify the specific information on it at the time of sale, the case holding that the seller recognizes the liability for damages not to perform the obligation under the good faith principle in accordance with the sale contract, and ordering the seller to compensate for damages equivalent to 90% of the value decline compared to the arm's length price without infringement of sunshine

[1] Article 86 subparagraph 2 (b) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 15396, Jun. 17, 1997) (see current Article 86 (2) 2) Articles 390 and 393 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Kim Dong-dong et al. (Attorney Seo-young, Counsel for the defendant-appellant)

C. Housing Improvement Development Cooperatives (Law Firm Shin, Attorney Kim Jong-chul, Counsel for the plaintiff-appellant)

1. The Defendant shall pay to the Plaintiff Kim Dong-dong amounting to KRW 32,400,00, KRW 3300,000 each year from December 13, 200 to KRW 5% per annum from December 13, 200.

2. The plaintiffs' remaining claims are dismissed.

3. Ten percent of the costs of a lawsuit shall be borne by the plaintiffs, and the remainder shall be borne by the defendants.

4.The provisions of paragraph 1 of this Article may be provisionally executed.

The defendant shall pay to the plaintiff Kim Dong-dong amounting to KRW 36,00,000, KRW 37,000 per annum from December 13, 200 to the full payment date, KRW 37,00,000 per annum.

1. Basic facts

The following facts are not disputed between the parties, or each entry of Gap evidence 1 (including paper numbers; hereinafter the same shall apply), Gap evidence 2, and Gap evidence 5 through 7, and the result of the on-site verification by this court, the right to sunshine consent, the result of the appraisal of infringement of the right to view, and the purport of the entire pleadings.

A. The defendant, as the implementer of the housing redevelopment project in Dobongcheon7-1 zone, set the project implementation period from December 27, 1993 to September 30, 1999, and constructed an apartment building (e.g., the apartment of this case; hereinafter referred to as the " apartment of this case") composed of 10 Dongs, 2,314 households on the ground of 81, Seocheon-dong, Seocheon-gu, Seoul Special Metropolitan City and 74,837 square meters on the ground of 40 square meters from December 27, 1993 to September 30, 199. On November 1, 1996, the defendant sold the apartment to the general public (general) for 381 households designated as the physical rain facilities among the above apartment of this case, with the approval of the head of the competent Gwanak-gu office for the recruitment

B. Through the above general sale, the Defendant, the Plaintiff Kim Dong-dong, and the Plaintiff Kim Dong-dong, respectively, paid to the Defendant the sum of KRW 134,136,000 (=16,767,000 + KRW 16,000) including the down payment, KRW 33,534,00,00, and KRW 1036,00,00,000, in total, of KRW 104,103 [143.29 square meters (4.34 square meters) of the instant apartment building (43.34 square meters; hereinafter the same shall apply], KRW 105 of the same subparagraph, and Plaintiff Kim Jong-dong, respectively,

C. The current status of the households that the plaintiffs purchased among the apartment of this case

(1) The 104 unit of the instant apartment sold by the Plaintiff is a building of 28 floors of reinforced concrete sloping roof (21 floors: 21 floors, 227 floors, 3 and 5 floors: 28 floors), which is built in the form of "A" where the trend building and the part of the building south are attached to the building, and each household that the Plaintiffs bought in lots (hereinafter referred to as "each household of this case") is located in the south side of the right, and all of the households of this case are composed of 4-type rooms, 4-type toilets, two bathing rooms, 1-type rooms, and 1-type room.

(2) A parking lot retaining wall (hereinafter referred to as “the retaining wall of this case”) is installed on the bend door of each of the instant households. The lineal distance from the center of the retaining wall of this case to the end line of the apartment is about 5 meters, and approximately 3.1m from the front side of 104 dong to the end line of the retaining wall.

(3)The retaining wall of this case is a major rectangular concrete structure installed on the slope surface of the slope of the mountain slope, and its inside is used as a parking lot, and children's play lots are installed on the above ground.

(4) In view of the 104 dynamics of the instant apartment from the instant playground, the two floors seems to be observed on the top, and each of the instant households seems to be lowered to the lower end.

(5) While the retaining wall of this case was installed with sunbeams, and the inner inside of each of the instant households was revealed rather than underground fences, it is considerably difficult to lead a daily life on a clear day, if it is set up on a clear day as well as on a clear day.

D. Effect of the retaining wall of this case on each household of this case

(1) The issue of sunshine

In the case of each of the households of this case, if at least 80% of sunshine is conducted at the front side of the retaining wall of this case, the hours of sunshine shall be calculated at intervals of one minute after judging the hours of sunshine. (Attachment 1) The continuous sunlight hours between 09:0 and 15:00 based on the day of the winter as described in the status of sunshine (attached Form 1) shall be calculated at intervals of one minute. (1) The continuous sunlight hours between 0:43 minutes and 43 minutes of the Plaintiff Kim Dong-dong, (105) 0 to 20 minutes of the Plaintiff Kim Dong-dong, and (101 minutes from 0:0 to 16:00 of the Plaintiff Kim Dong-dong, and the total sunlight hours between 08:0 to 100 minutes of the Plaintiff Kim Dong-dong, 103 minutes of the Plaintiff Kim Dong-dong, and (205 minutes of the Plaintiff Kim Dong-dong, 57 minutes of the Plaintiff Kim Dong-dong, and 1015 minutes of the 4.

(2) View issues

The previous rate and the present rate of astronomical meritorious rate for each of the households of this case are equal to the rate of infringement on view (attached Form 2). Each of the households of this case is subject to considerable infringement on view (referring to the rate of the portion that seems to be located within the distance of the view area. The infringement rate of view means the rate calculated by comparing the degree that does not seem to be visible due to underground structures compared to the degree of view in cases where a person who 170 cm from the center point of each of the households of this case sits at the height of 170cm from the center point of each of the households of this case and sees the window in the direction of the window.)

(3) Personal privacy issues

In the case of each of the households of this case, it appears from the playgrounds of this case to be discussed in living rooms and plans, and in particular, since the indoors are revealed more than out of nights, the degree of infringement of privacy is more severe than that of this case. Thus, the degree of infringement of each of the households of this case is numericalized with the degree of infringement of privacy (attached Form 3) by considering the state in which there is no infringement of privacy, as the state in which there is no infringement of privacy, as the level of infringement of privacy is 10 grade.

E. At the time of entering into an apartment sale contract with the Defendant, the Plaintiff merely indicated the apartment complex allocation scheme, which is a usual size, and did not have any indication as to the structure and form of the retaining wall of this case, and the Defendant also did not explain to the Plaintiffs on this point. As such, at the time of entering into each sales contract, the Plaintiffs did not know at all about the above damages, and rather, they knew that the instant playground was located at the front of December 199, and that the view was good at the front of December 199, only when they visited each of the instant households for the pre-inspection of the occupants of the apartment.

2. The assertion and judgment

A. The parties' assertion

The plaintiffs claim compensation to the effect that, at the time of entering into a sales contract with the plaintiffs, the plaintiffs entered into a sales contract with the same amount as the sales amount of another household with no infringement without notifying the plaintiffs of the fact that the plaintiffs' right to enjoy sunshine was infringed upon each household at the time of entering into the sales contract, thereby causing property damage equivalent to the decline in the value of each household of this case due to infringement of the right to enjoy sunshine, etc.

Accordingly, the defendant asserts to the effect that the infringement of the right to enjoy sunshine, etc., as claimed by the plaintiffs, is within the scope of the number of plaintiffs who are the buyers, and thus, the plaintiffs' claim seeking damages is unjust.

(b) Markets:

(1) Occurrence of damages liability

(A) As long as the sale price of each of the households of this case that were sold in lots is the same as the sale price of other households that do not interfere with sunshine, the defendant is obligated to supply apartment buildings that are guaranteed under the principle of good faith at least the acceptable limit under the generally accepted social norms, even though there was no explicit agreement on sunshine, etc. of apartment buildings sold in lots. On the other hand, if the degree of sunshine infringement exceeds the generally accepted limit under the generally accepted social norms, if there is a direct regulation on sunshine under the related laws, such as the Building Act, it is an important factor to determine whether it is in conformity with the relevant laws and regulations. However, if there is a direct regulation on sunshine obstruction under the relevant laws and regulations such as the Building Act, it is reasonable to view the regulation under the public law as a basis for protecting the right of sunshine in terms of public law. Therefore, even if construction of a building is formally fit for the regulation under the public law at the time of construction, it is possible to judge whether it is beyond the generally accepted social norms, and whether it is possible to avoid damage to land use and its purpose.

(B)However, with respect to the restriction on the height of a building for securing sunlight, etc., if the above plaintiffs face each of the above households at the time of the purchase of the building in this case, "if two or more buildings face each other within the same site" under Article 86 subparagraph 2 (b) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 15396 of Jun. 17, 197), the height of each part of the building is not more than 1.25 times the distance from each part of the outer wall opposite to each other to each part of the outer wall of the other, or if all households within the site are installed within the same building site at least 9: The height of the building is not less than 1.25 times the height of the outer wall of the building in question, which is at least 9: The height of the outer wall installed within the same time as the outer wall of the building in question, which is at least 1.5 meters away from each other; according to Article 86 (2) 2 of the Enforcement Decree of the Building Act, it means not less than 8 meters away from each part of the outer wall.

(C) Examining the above facts in light of the above criteria, it is difficult for the defendant to have known that the above apartment sales contract of this case was likely to infringe upon the defendant's duty of care at the time of sale in lots, and thus, it is difficult for the defendant to have known that the apartment sales contract of this case was likely to infringe upon the plaintiff's right of care at the time of sale in lots, and that it was difficult for the defendant to have known that the apartment sales contract of this case was likely to infringe upon the plaintiff's right of care at the time of sale in lots, and that the apartment sales contract of this case was likely to infringe upon the plaintiff's duty of care at the time of sale in lots. Thus, it is difficult for the defendant to have known that the apartment sales contract of this case was likely to infringe upon the plaintiff's right of care at the time of sale in lots, and that it was difficult for the defendant to have known that the apartment sales contract of this case was likely to infringe upon the plaintiff's right of care at the time of sale in lots and the possibility of infringement on the plaintiff's right of use.

(D) Accordingly, the Defendant, who is the seller, shall be liable for damages for failure to perform the obligation under the good faith principle in accordance with the sales contract to supply the quality apartment buildings set forth in each of the sales contract in this case, and the amount of damages shall be the amount equivalent to the value decline arising from the infringement of sunshine, etc. as above.

(2) Scope of damages

(A) Comprehensively taking account of the overall purport of the argument as a result of the appraisal of the market price of the appraiser's gambling, the value decline due to the infringement of sunshine, view, privacy, etc. (as requested by the plaintiff, as of December 13, 200, the date of completion of construction as of December 13, 200) can be acknowledged as constituting gold 36,00,000, Plaintiff Kim Dong-dong's purchase of KRW 105,000, and KRW 101,000, respectively, when the arm's length price was based on the arm's length price not infringed by sunshine, etc. (as requested by the plaintiff, the date of completion of construction as of December 13, 200).

(B)On the other hand, considering the fact that there is no violation of laws and regulations in the building act of the apartment of this case by the defendant, and that even if the price falls below the limit of admission due to infringement of sunshine, etc. by each household which was sold by the above plaintiffs, if the price falls below the limit of admission, the defendant is not liable to compensate for it, considering that there is no infringement of sunshine, etc., it is unreasonable to impose on the defendant the full amount of price decline calculated on the basis of the arm's length price, which is calculated on the basis of the arm's length price, the amount of

3. Conclusion

Thus, the defendant is obligated to pay damages for delay according to the rate of 5% per annum under the Civil Act to the plaintiff Kim Dong-dong as damages for each of the plaintiff Kim Dong-dong's damages for losses, respectively, 33,300,000 won for each of the 36,400,000 won for the plaintiff Kim Dong-dong (=36,000,000 won x 0.9), plaintiff Seo-ho, and Kim Jong-dong (=37,000 won x 0.9) and each of them, as the plaintiffs seek from December 13, 200 to the completion date of the apartment of this case from December 13, 200 to the completion date of the apartment of this case. Therefore, the plaintiffs' claims are justified within the above recognition scope, and the remaining claims are dismissed as it is so decided as per Disposition.

Judges Sohn (Presiding Judge)