2014Da220927 Installation of soundproofing facilities

1. E;

2. A;

3. B

4. F;

5. C.

6. D;

Changwon-si

Busan High Court (Chowon) Decision 2014Na2007 decided July 24, 2014

December 1, 2016

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Whether the degree of noise generated by road noise (hereinafter referred to as "living obstruction") exceeds the generally accepted level of daily life (hereinafter referred to as "limit of participation") shall be determined by comprehensively taking into account all the circumstances, including nature and degree of damage, the public nature of benefits from damage, the form of harmful act, the character of harmful act, the public nature of harmful act, the possibility of the perpetrator's preventive measures or the possibility of avoiding damage, the violation of the regulation standards in public law, regionality, and the follow-up relationship of land use (see, e.g., Supreme Court Decisions 98Da47528, Jul. 27, 1999; 2004Da37904, 37911, Jun. 15, 2007).

In addition, it is also necessary to fully consider the occurrence and increase of road noise in the reality that roads are indispensable for modern life, such as the provision of convenience to inter-regional traffic and balanced development and the industrial and economic activities of the State, and the construction of a road network in the vicinity of an urban development project is being performed as an essential element for the construction of a improved road network, automobile traffic forms a large part of traffic, and the over-populatedness of dwelling due to urbanization and industrialization is being carried out.

Meanwhile, in a case brought for interference with daily life due to road noise, it cannot be readily concluded that there exists road noise exceeding the environmental noise standard under the Framework Act on Environmental Policy, and thus, there is an unlawful infringement exceeding the civil reference limit. Barring special circumstances, it is reasonable to determine whether the noise level measured in the state of opening all windows in the direction of the noise source, such as roads, is beyond the environmental noise standard under the Framework Act on Environmental Policy (see, e.g., Supreme Court Decision 2011Da91784, Sept. 24, 2015).

2. The court below determined that the defendant is liable to compensate the plaintiffs for mental damages exceeding the standard of noise in general residential area under Article 5 of the State Compensation Act by considering the following: (i) noise in the apartment of this case has been measured several times in most households located on the roadside of the road as a result of the measurement of noise in this case; (ii) the second-class general residential area as stipulated in the National Land Planning and Utilization Act in the area where the apartment of this case is located; and (iii) there is no evidence to prove that there was any other matter of noise in addition to the installation of monitoring camera for the continuous prevention of noise on the road of this case; (iv) the defendant submitted a report on traffic impact assessment and reduction measures only after the filing of the lawsuit by the owner of the apartment related to the road noise; and (v) the plaintiffs were found to have resided in each household in excess of the standard of noise in the road of this case, which is anticipated to have occurred in excess of the standard of noise in general residential area under Article 5 of the State Compensation Act.

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

According to the reasoning of the judgment below and the records, ① National highway 25 lines among the roads of this case were commenced on August 30, 2002, and national highway 2 lines were commenced on January 19, 2004. The apartment houses of this case were approved on May 28, 2004 and the buyer began to move in on August 31, 2006. ② Most residents living in urban areas due to urbanization, industrialization, and over-concentration of residence, etc. were to start living in a specific place under a certain degree of noise. In principle, it is difficult for the plaintiffs to have known about the noise level of apartment houses of this case at the time of residing in the apartment house of this case, and it is difficult for them to view the noise level of apartment houses of this case as being used on the basis of their daily life, and it is also difficult for them to have known about the occurrence or increase of road noise level of each apartment house of this case at the time of their living in the apartment house of this case, and calculated noise level of non-permanent noise level of this case.

Examining such circumstances in light of the legal principles as seen earlier, it is difficult to readily conclude that the Defendant is liable to compensate for damages on the sole basis of the circumstances as indicated in the lower judgment in the instant case.

4. Therefore, the lower court should have determined whether the Defendant is liable to compensate the Plaintiffs, taking full account of the aforementioned circumstances. However, the lower court acknowledged the Defendant’s liability to compensate for damages without measuring the noise level at the point where the Plaintiffs’ daily life actually takes place, and without considering the follow-up relationship of land use. In so doing, the lower court erred by misapprehending the legal doctrine on “the limit of participation in interference with daily life due to road traffic noise,” thereby failing to exhaust all necessary deliberations,

5. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Kim In-young

Justices Lee Dong-won