2015 Gohap3767 Damage (as defined)

○ ○

Incheon Southern-gu Culture Complex

Attorney Lee Jong-soo, Counsel for the plaintiff-appellant

1. Mo○○

Incheon Southern-gu Culture Complex

2. South ○○

Busan District Court Decision 201Na1148 delivered on April 1, 201

May 27, 2016

June 24, 2016

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the Defendants.

The Defendants jointly and severally pay to the Plaintiff 136,00 won as well as to the purport of the claim filed on May 26, 2016 and the purport of the claim, and the amount calculated by applying 5% per annum from the day following the day of service of a copy of the application for change of the cause of claim until the day of the judgment of this case, and 15% per annum from the next day to the day of full payment, and the next day to the day of full payment. The Defendants removed the floor in front of the real estate listed in the attached list, and perform waterproof treatment work, and perform water leakage prevention work by reconstruction, and if the Defendants fail to perform the above water leakage prevention work within one month from the day of delivery of the original copy of the judgment of this case, they shall pay the amount calculated by applying 200,000 won per month from the day after the above simplified expires until the day of execution.

1. Basic facts

A. The Plaintiff is the owner of the Nam-gu Incheon Metropolitan City ○○ apartment ○○○ apartment (hereinafter referred to as the “Plaintiff apartment ○○○○,”) and the Defendants are the owners of the same apartment that is the same immediately preceding floor as the apartment (hereinafter referred to as “the Defendants apartment Da”) (share ratio: Defendant 00 3/5, and Defendant South ○○○○○ 2/5) who reside in the apartment of each year before several years.

나 . 한편 2013 . 6 . 경 원고 아파트의 발코니 천장 일부분에 도장 ( 塗裝 , 페인트칠 ) 의 들 뜸현상 ( 이하 ' 이 사건 천장들뜸현상 ' 이라고 한다 ) 이 발생하는 문제가 발생하였고 , 원고 가 2013 . 6 . 14 . 경 윗층에 거주하는 피고들에게 ' 피고들 아파트 발코니 또는 샷시에서 물이 샌다 ' 는 취지로 항의하면서 , 원고 아파트에 발생한 이 사건 천장들뜸현상이 그 윗 층에 거주하는 피고들 책임인지 여부에 관하여 당사자들 사이에 분쟁이 발생하였다 .

[Ground of Recognition] In the absence of dispute, entry and video of Gap evidence 1 to 3 (including branch numbers)

The purport of all pleadings

2. Grounds for the plaintiff's claim

As a result of the instant tent phenomenon, the upper floor apartment group's water was provided in a daily life by the Defendants while growing the water in the balcony, and it was located inside the fluorites in the balcony floor of the apartment apartment of the Defendants, etc., which caused problems including the Defendants' living sphere. Accordingly, this is within the scope of the Defendants' responsibility. Accordingly, this is within the scope of the Defendants' responsibility. (1) The Defendants jointly and severally pay the Plaintiff for damages due to the infringement of ownership (136,00 won in water-scam coloring coloring expenses). (2) The Defendants are obliged to remove the infringement of ownership or prevent any subsequent infringement by removing the water-proof treatment and water-saving construction on the balcony floor of the Defendants’ balcony.

[Judgment of the court below] The defendants asserted that the defendants asserted that the plaintiff's apartment was presumed to have been caused by the plaintiff's apartment itself, not by the plaintiff's living activity area, but by the plaintiff's apartment. The defendants asserted that the plaintiff's apartment does not respond to the plaintiff's claim

3. Determination

A. In a case where the appraisal result produced and submitted by an appraiser is found to be confirmed in the on-site verification process by a judge, and where the appraisal report is prepared and submitted on the basis of the appraiser’s own evaluation content under the premise of a different fact from that of an appraiser under the premise of an objective verification among the interested parties at the site of the verification, such appraisal results are lacking in objectivity and rationality based on the neutral status of the appraiser. Thus, a judge involved in the on-site verification may reject such appraisal results.

Moreover, a judge cannot be deemed to have violated the rules of evidence by rejecting the results of appraisal (see Supreme Court Decision 2008Da67859, Dec. 9, 2010, etc.).

B. In light of the legal principles of this case, there is a result of the appraiser ○○’s second appraisal on May 4, 2016 (hereinafter “the result of the appraiser ○○’s second appraisal”), which seems to be consistent with the Plaintiff’s assertion that the astronomical ethy phenomenon of this case occurred as a matter of the Defendants’ living environment (the inside defect of balcony or the Defendants’ living habits) on the part of the Defendants. However, it is difficult to believe it for the reasons as determined below, and there is no other evidence to acknowledge the Plaintiff’s assertion as to the above causation, and therefore, the Plaintiff’s assertion based on this premise is without merit.

1) On April 20, 2016, before arrival, the result of the on-site inspection by the court of this case conducted by both the above appraiser, the defendants, and the plaintiff legal representative on behalf of the above appraiser on April 20, 2016. According to the fact that the judge confirms from on-site inspection that the field inspection was conducted with a hand floor, there was no difference in the phenomenon, such as milching and damping of the pertinent part in the previous and subsequent years. Despite this, the appraiser's results of the said appraisal were not milched before the execution of a water test, and after the execution of the said test, it is included to the purport that it was milked.

2 ) 원고가 거주하는 아래층 아파트의 발코니 천장과 샷시 , 외벽이 연결되는 접합 부에는 실리콘 재질의 방수재가 설치되어 있지 않았다 ( 반면 , 피고들이 거주하는 윗층 아파트의 해당 부분에는 실리콘 재질의 방수재가 설치되어 있었다 ) . 현장검증에 참석한 이해관계인들의 주장에 의하면 , 며칠 전에 비가 많이 왔었는데 , 원고 측 발코니 천장에 ' 다소의 착잡함 ' 이 느껴지는 것은 원고 측 외벽이 비에 젖어서 습도가 올라간 상태에서 실리콘 재질 방수재의 미설치로 인하여 그 외벽의 젖은 부위가 원고 측 발코니의 천장 부위까지 착잡하게 영향을 미치기 때문이라는 것이다 . 그럼에도 불구하고 감정인의 2 차 감정결과는 현장검증 절차에서 오고 간 이런 논의에 대하여 합리적으로 이해할만한 정도의 설명을 못하고 있다 .

3) In the balcony of the instant apartment building, the distance between the columns and columns is wide, and there is a possibility that the balcony might be down to the lower part, which is the center near the balcony tent, due to the relationship with no “spawn”. The part was confirmed to be a part near the center where there is no spathy phenomenon of the instant apartment building on the part of the Plaintiff. Nevertheless, the appraiser’s appraisal result was in the on-site inspection procedure and did not provide an explanation to the extent that it is possible to understand such discussions in a combined manner.

4) An appraiser conducted the first appraisal on December 5, 2014 (hereinafter “the first appraisal appraisal division”) prior to the second appraisal. According to the results of the first appraisal, the court concluded that the causal relationship between the Defendants’ living sphere is not acknowledged. However, according to the assertion that the Plaintiff should conduct the second appraisal at the lower end of the said season, and that the test time of the draft appraisal should be much increased, this court conducted the second appraisal procedure and the first on-site verification procedure at the judge as above. However, there is no sufficient evidence to acknowledge that the Defendants’ living sphere constitutes the causes of the instant YY, namely, the causal relationship.

5) Meanwhile, the Plaintiff’s assertion that the 48-hour test should be conducted to determine the causal relationship among the Plaintiff’s allegations related to the second appraisal, and the contents of the appraiser’s’s written opinion suggesting to support it cannot be accepted in light of logical rules and empirical rules. The Defendants, who are the upper house, have a normal structure where water is installed at the corner of the balcony, and the water is smooth in a normal way. Despite the fact that the actual existence exists, there is no reasonable ground to stop “48-hour conditions” (if the Plaintiff’s assertion was kept at the house for 48 hours even if it was called an apartment of normal design and construction, it would be natural to have a long influence on the house regardless of whether the 48-hour conditions exist, and it would be reasonable to have a reasonable content).

6) The test of "one hour and thirty minutes of the water test" carried out at the lower season was conducted in a somewhat exceptional manner in accordance with the plaintiff's argument, if the existence of the water outlet is two in salt farm, and the test was conducted before and after that, as a result of the test of water testing, it did not show the phenomenon of "milching" on the top part of the floor of this case, and it was confirmed by the on-site inspection procedure of about one hour and thirty minutes by the judge, if there was no change in the degree of "weaking" or "weaking."

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Dong-jin

Judges Senior fixed-ranking

Justices Kim Ha-young