206 Gaz. 16099 Damage

1. Plaintiff 1

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

2. Plaintiffs 2.

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

3. Plaintiffs 3

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

4. Plaintiff 4

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

5. Plaintiffs 5

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

6. Plaintiffs 6

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

7. Plaintiff 7

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

8. Plaintiff 8

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

9.Magim ○○○ Litigation Assistants

(a)Oil ○

Seoul Seocho-gu (hereinafter referred to as the "Omission");

b.○○

Seoul Mak-gu (hereinafter referred to as the "Omission").

10. Plaintiffs 10

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

11. Plaintiffs 11

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

[Defendant-Appellant]

1. Defendant 1 Housing Reconstruction Project Cooperatives;

Incheon Southern-gu (hereinafter referred to as "Seoul-gu")

Head of partnership

2. Defendant 2 corporation

Gangnam-gu Seoul (hereinafter referred to as "Seoul")

Representative Director;

3. Defendant 3 Company

Yeongdeungpo-gu Seoul (hereinafter omitted)

Representative Director;

[Defendant-Appellant]

July 24, 2008

July 24, 2008

1. The Defendants: (a) their respective plaintiffs 1, 389, 00 won, 5, 788, 000 won, 11, 053, 000 won, 10, 386, 000 won, 181, 181, 000 won, 88, 154, 000 won, 00 won to the plaintiffs 6 of 8, 988, 000 won, 13, 238, 00 won, 00 won to the plaintiffs 8, 200 won to the plaintiffs 8, 200 won to the plaintiffs 13, 238, 00 won to the plaintiffs 8, 200 won to the plaintiffs 2, 12, 57, 401, 200 won to the plaintiffs 12, 15, 401, 15, 201, and 200 won to the plaintiffs 2.

2. The plaintiffs' remaining claims against the defendants are dismissed.

3. One-fifth of the costs of lawsuit is assessed against the plaintiffs, and the remainder is assessed against the defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally against Plaintiffs 1, 8, 667, 00 won, 6, 456, 00 won, 11, 479, 00 won, 11, 259, 00 won to Plaintiffs 4, 15, 535, 000 won to Plaintiffs 5, and 16, 084, 000 won to Plaintiffs 7, 13, 188, 00 won to Plaintiffs 8, 14, 238, 00 won to Plaintiff 2, 00 won to Plaintiff 14, 238, 00 won to Plaintiff 8, 200 won to Plaintiff 1, 200 won to Plaintiff 2, 50% to Plaintiff 2, 208, 209, 208, 201 to Plaintiff 2, and 5% to Plaintiff 5% to each of the above 13, 200, 2018.

1. Basic facts

A. The plaintiffs are owners and occupants of the single-story and the second-story housing (hereinafter referred to as the "house of this case") located in the Nam-gu Incheon Metropolitan City (hereinafter referred to as "non-residential area"), and the defendant 1's house reconstruction consolidation (hereinafter referred to as the "the defendant association") is a co-project owner of the above reconstruction project. The defendant 53 existing apartment units 2,380 units are demolished on the land of the Nam-gu Incheon Metropolitan City (hereinafter referred to as "the defendant association") adjacent to the house of this case and reconstructed 37 units of the apartment units and 160 units of the new apartment units (hereinafter referred to as "the apartment of this case"), the defendant 2, and the defendant 3 (hereinafter referred to as the "the defendant company") are co-project owners of the above reconstruction project.

B. The Defendants began with the construction of the instant apartment after obtaining approval from the head of the Nam-gu Incheon Metropolitan City head of the Gu, and completed the structural construction of the instant apartment on January 1, 2007.

C. As a result of calculating the number of hours of sunshine utilizing the weight of the area of sunshine windows on each floor of the instant apartment house, the number of hours of sunshine between 8 A.M. and 4 P.M. from 8 A.M. before and after the new construction of the instant apartment house (hereinafter “total number of hours of sunshine”) and the number of hours of sunshine between 9 A.M. and 3 P.M. (hereinafter “ consecutive hours of sunshine”) are as shown in the attached Table of the number of hours of sunshine.

D. Meanwhile, on May 18, 2007, when the lawsuit of this case was pending, the Plaintiff Kim ○ died, and accordingly, the Plaintiff Kim ○○, a child of the Deceased, taken over the lawsuit of the Plaintiff Kim ○○.

【Uncontentious facts, Gap Nos. 1 and 10 (including number), on-site verification, appraisal (daily, Privacy), fact-finding ( appraiser), and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. The plaintiffs' assertion

The plaintiffs asserted that since the right to enjoy sunshine, view, and privacy which have been previously enjoyedd due to the construction of new apartment of this case was infringed beyond the tolerance limit, the defendants are liable to compensate their respective plaintiffs for property damages and mental distress damages.

B. Determination on the claim for damages caused by infringement of the right to sunshine

1) In a case where a resident on the adjoining land gets able to cut off a direct luminous line due to the new construction of a building, if the new construction of a new building goes beyond the scope of legitimate exercise of right and is evaluated as an illegal harmful act in private law, the degree of the sunshine interruption goes beyond the generally accepted tolerance limit under the generally accepted social norms. Whether the obstruction of sunlight goes beyond the tolerance limit under the generally accepted social norms or not shall be determined by comprehensively taking into account all the circumstances such as the degree of the year wherein the building was faced, the nature of the damaged interest and its social evaluation, the purpose of the damaged interest and its social evaluation, the use of the building, the regional characteristics, the follow-up relationship of the earth and sand utilization, the possibility of preventing damages and avoiding damage, the possibility of violating the public law regulations, and the progress of negotiations (see Supreme Court Decision 2003Da64602, Sept. 13, 200

2) Considering the various circumstances shown in the argument of this case and the general residential form in urban areas comprehensively, in the case of the instant housing, if the sunlight hours during the six hours between 9:00 p.m. and 3:00 a.m. as of the winter day are continuously secured for two hours or more, or if the sunlight hours during the eight hours between 8:00 a.m. and 4 p.m., during the eight hours between 8:00 a.m. and 3:00 a.m., it is reasonable to view that, in the case of sunlight interruption that does not belong to any of the two above, it exceeds the tolerance limit.

3) In full view of the results of an appraisal (light, view, and privacy) and the fact inquiry (in full view of the purport of the entire pleadings as a result of an appraiser ○○, appraiser ○)’s inquiry, full use of the weighted value of the area of the sunlight created on each floor of the instant house.

As a result of calculating representative sunshine hours, the apartment building of this case shows a relatively good sunshine environment before the new construction of the apartment building of this case. The new construction of the apartment building of this case, which received the sunshine interruption and the total sunshine hours of this case from about 80% to 90%, so that the total sunshine hours of this case do not reach about 4 hours and the continuous sunlight hours do not reach 2 hours. In the case of the house of Incheon Nam-gu (hereinafter omitted), according to the above representative sunshine hours, according to the total sunshine hours of this case: 01: 09, continuous sunlight hours 00: 00: 51 or second floor before the new construction of the apartment of this case, 02: 7,02: 03, the continuous sunlight hours after the new construction of the apartment of this case, and 00: 30,000,07, the plaintiffs suffered a new construction of the apartment house of this case, which exceeds the tolerance level of this case.

C. Determination on the claim for damages caused by infringement of the view right

1) If it is objectively recognized that the owner of a certain piece of land or a building has the value of a view that he had previously enjoyed from his place of view as a single living benefit, such benefit of view can, in principle, be legally protected only when a specific place of view has a special value in view of the outside from its place, and it is recognized that the benefit of view that the owner or possessor of the building has the importance to the extent that the benefit of view that is enjoyed from the building has to be approved as an independent benefit under social norms, such as the case where the building is constructed for the important purpose of enjoying such benefit of view, and it cannot be legally protected unless there are special circumstances (see Supreme Court Decision 2004Da54282, Jun. 28, 2007, etc.).

2) Comprehensively taking account of the overall purport of the pleadings, the fact that the infringement rate of the view on some of the instant houses has increased by approximately 10 to 30% from among the instant houses, but on the other hand, there was no special landscape around the instant house, and there was no special characteristic of the place, such as where the instant house was constructed for the benefit of the view or where the view or view had an objective significance, it is difficult to view that prior to the new construction of the instant apartment, there was a benefit of the view that the Plaintiffs had enjoyed the benefit of the view to the extent that the Plaintiffs can legally protect before the new construction of the instant apartment, and there was no other evidence to acknowledge it, and therefore, it is not reasonable to deem that the aforementioned assertion by the original members is without merit.

D. Determination on the claim for damages caused by infringement of privacy

1) Considering the overpopulated population of a large city and the tendency of high density and high density of a building for efficient use of land, it is difficult to view that there exists a violation of privacy exceeding the tolerance limit under social norms solely on the ground that the construction of the building is unlawful only when the infringement of privacy on neighboring buildings is considerably high and exceeds the tolerance limit under social norms due to a significant increase in the privacy of neighboring buildings. It is difficult to view that there exists a violation of privacy beyond the tolerance limit under social norms solely on the ground that the construction of the building was exposed to a certain degree of privacy in neighboring houses.

2) Comprehensively taking account of the overall purport of the arguments as a result of the examination, appraisal (light, view, privacy) and the construction of the apartment of this case, the facts that, in the case of the housing of this case in the Nam-gu Incheon Metropolitan City (hereinafter omitted), the privacy infringement level of the housing of this case may be recognized as somewhat increased from 9 to 8, but the above facts alone do not constitute a violation of privacy against the plaintiff 6 residing in the housing of this case beyond the tolerance level, and there is no other evidence to acknowledge it, and therefore, the plaintiff's above assertion is without merit.

E. Determination on Defendant Company’s liability for damages

1) Since a contractor for a construction work of a building constructs a building as a performance of the obligation under the contract, in principle, there is no liability for damages for the prevention of sunshine. However, in the case where a contractor constructs a building for the purpose of obstructing another person's sunshine by having the contractor himself/herself or together with the contractor with the intent of the contractor, he/she shall be liable for damages for the prevention of sunshine if there are special circumstances, such as where the building was in violation of the construction regulations and thus obstructing another person's sunshine, even though he/she could have known or known that the building was in violation of the construction regulations, and that the building was constructed with the intent of hindering another person's sunshine, the contractor shall also be liable for damages for the prevention of sunshine (Supreme Court Decision 2004Da38792 delivered on March 24, 2005).

2) In full view of the purport of the entire arguments in the above facts, the defendant company ordered them as joint project undertakers in preparing a written contract for the construction of the housing reconstruction project of this case, and it is recognized that the defendant company led the reconstruction of this case to the defendant association, such as the defendant company's input of construction cost and project expenses in relation to the reconstruction of the apartment of this case, and the defendant company selected a method to cover the above construction cost due to the defendant's management and disposal plan by selling the remaining apartment after selling it to the members of the association, and the general sale of the apartment in lots, etc. under the management and disposal plan of the defendant company. Thus, since the defendant company constructed the apartment of this case as joint project undertaker with the defendant association and actually as joint project undertaker, the defendant company is obligated to compensate for damages and losses caused by the infringement of the right to sunshine against each of the defendant union and the plaintiffs.

3. Scope of liability for damages

(a) Property damage;

1) Whether a residential building satisfies the conditions of sunshine, etc. suitable for residential environment is an important factor that constitutes an exchange price of a residential building. When a residential building or its site causes an infringement of sunshine, etc. due to the decline in the market price, causing property damage equivalent to the decline in the market price.

2) Unless there are special circumstances, the plaintiffs' property damage caused by the construction of the apartment of this case by the defendants is the amount equivalent to the decline in the market price of the housing and housing site of this case due to the above sunshine infringement. According to the appraisal (market price decline), the market price of the housing of this case can be recognized as having fallen as stated in the "the fall amount due to the sunshine infringement" as stated in the attached Form 2. However, according to the above appraisal result, the appraiser recognized that the infringement of the right to view and privacy against the above sunshine infringement generation also caused the infringement of the right to view and privacy, as well as the value decline due to the infringement of the view and the right to view and privacy of this case, the appraisal price of the apartment of this case is calculated by adding up the value decline in the housing of this case owned by the plaintiffs due to the above sunshine infringement, and the appraisal (market price decline) of the appraisal right of this case does not infringe the market price of this case, and thus, the appraisal price of the apartment of this case shall be calculated as the market price of this case.

(b) Mental damage;

1) A person who resides in a building where the limit of tolerance is violated shall be deemed to have suffered not only inconvenience in daily life but also considerable mental suffering due to deterioration of the residential environment in light of the empirical rule, and this is difficult to completely recover from the compensation of property damage. The defendants are liable to pay consolation money for mental suffering to the plaintiffs.

2) Furthermore, considering various circumstances, including the importance of securing sunshine, etc. in relation to the specific consolation money that the Defendants are liable to compensate for, and the degree of interference with sunshine, etc. caused by the construction of the instant apartment, the distance between the instant housing and the instant apartment, and the fact that the instant housing is a relatively high residential building, etc., the amount of consolation money for Plaintiffs 1, 2, 5, 6, 10, 10, and 11, respectively, shall be determined as follows: 3,00,000, 3, 4, 7, and 3, 7, and 7, and the consolation money for Plaintiffs 1,000,000, and the amount of consolation money for Plaintiffs 8, respectively, as the amount of consolation money for Plaintiffs 2,00,000,000,000,000 won, and the amount of consolation money for Plaintiffs 8.

C. Sub-committee

Therefore, the Defendants, 00 won 8, 389, 00 won - 0, 00 won - 0, 00 won - 1, 00 won - 0, 00 won - 1, 00 won - 8, 00 won - 0, 00 won - 1, 00 won - 0, 00 won - 1, 00 won - 0, 00 won - 1, 00 won - 8, 00 won - 0, 00 won - 1, 053, 00 won - 0, 00 won - 0, 00 won - 8, 00 won - 1, 00 won - 0, 00 won - 8, 00 won , 00 won -

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge

Judges

Judges