2016 Doz. 207191 Compensation (as referred to in this paragraph)

door-○

Gwangju City

Law Firm Doz.

Attorney Lee In-bok

A Stock Company

Seoul

Representative Director;

Law Firm Doz.

Attorney Lee In-bok

October 27, 2017

November 24, 2017

1. The Defendant shall pay to the Plaintiff (designated parties) and the appointed parties 15% interest per annum on each of the money listed in the corresponding column of “amount cited” and each of the said money from May 22, 2017 to November 24, 2017, and 15% interest per annum from the following day to the date of full payment.

2. The plaintiff (designated party)'s remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against Plaintiff (Appointed Party) A, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

From May 22, 2017 to the delivery date of a copy of the application for change of claim and cause of claim in this case, the Defendant shall pay to the Plaintiff (designated parties, hereinafter referred to as “Plaintiff”) and the Selections the amount of the claim in the separate sheet No. 2 in the corresponding sheet No. 2, and the amount calculated by 15% per annum from the following day to the date of full payment.

1. Basic facts

A. Status of the Parties

1) The plaintiff and the designated parties (hereinafter collectively referred to as "the plaintiff et al.") are divided owners of each household recorded in the corresponding column of "number of houses" in the attached table 2 of 304 Ma (hereinafter referred to as "the plaintiff apartment unit") in Taeju-si, Gwangju-si, and whether the plaintiff et al. reside in the apartment unit of the plaintiff et al. is the same as the corresponding column in the attached table 2 (Provided, That as mentioned later, ○○○ and ○○, et al., of the plaintiff et al. do not currently belong to the plaintiff's apartment unit).

2) The Defendant is an event at the time of the construction of new apartment units with a total of 19, 917 square meters above ground in Gwangju-si located on the south of the Plaintiff apartment units, 12 to 22 stories above ground, 6 Dong, 405 apartment units with a total of 405 households (hereinafter “instant apartment units”).

B. The current status, etc. of the plaintiff's apartment and the apartment in this case

1) On December 28, 200, the Plaintiff apartment was approved for use on or around December 28, 200, and its location is the following satellite photographs “(304 Dong 304).”

2) The location of the instant apartment is the place indicated as “the new building site.” The instant apartment was commenced on May 1, 2015, and was completed on March 27, 2017, at the construction site of the said satellite photograph.

3) At present, the appearance of the Plaintiff apartment is as follows: “The appearance of the Plaintiff apartment is equal to that of 5. Appraisal, and the appearance of the instant Ampat is as follows:

C. Confirmation of a decision on recommending compromise in the relevant provisional disposition case

5. Forest subject to appraisal;

6.New Buildings

B-1) On November 30, 2015, the Plaintiff et al. sought provisional disposition against the Defendant for the prohibition of construction works, seeking to prohibit construction works exceeding a certain number of floors among the instant apartment units under the head of Suwon District Court Sung-nam Branching 2015Kahap*****

2) On January 28, 2016, in the above provisional injunction case, the decision to recommend reconciliation (hereinafter “the decision to recommend reconciliation in this case”) was made on January 28, 2016, and the decision to recommend reconciliation in this case became final and conclusive on February 15, 2016.

A person shall be appointed.

A person shall be appointed.

3) According to the decision on the recommendation for reconciliation of this case, the Plaintiff et al. received from the Defendant each money recorded in the column of “prepaid” column of the attached Table 2 from the Defendant (a total of KRW 750,000,000).

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 1 through 16, Eul evidence Nos. 1 through 14, Eul evidence Nos. 1 through 14 (including number number; hereinafter the same shall apply), appraiser (hereinafter " appraiser")'s appraisal result of ○○○ (hereinafter "the appraisal result of this case") and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

Due to the construction of the apartment of this case, the plaintiff et al. was infringed upon the right to enjoy sunshine, the right to view, and the privacy. Therefore, the defendant shall pay the plaintiff et al. the damages for property caused by the infringement of the right to enjoy sunshine, the right to view, and the right to privacy. The defendant shall pay the plaintiff et al. the damages for mental compensation to the plaintiff et al. who resides in the apartment of this case among the plaintiff et al., and the damages for mental compensation to the plaintiff et al. (Provided, That the selected person who falls under the right of 1/2 of each household of the plaintiff's apartment of this case shall be the ○○○, Kim○, Kim○, Kim○, Kim○, the right to enjoy, the right to enjoy view, and the right to enjoy private life, each of which shall be paid KRW 1,500,000, 000, respectively.

3. Determination

(a) Occurrence of liability for damages;

1) As to whether the plaintiff's right to enjoy sunshine was infringed

A) Relevant legal principles

If a land owner, etc. is deemed to have a value as an objective living benefit, it may be legally protected if the sunshine benefit he/she has enjoyed from the previous one is deemed to have a value as an objective living benefit. In other words, the increase in sunshine that occurred due to the blocking of sunlight in the vicinity of a building or structure, i.e., the increase in sunshine that has been previously enjoyed in the land in question, the degree of sunshine blocking, the legal nature of the benefit from damage, the legal nature of the benefit from damage, the use of the building in question, the regional nature of the land use, the follow-up relationship of the land use, the possibility of preventing damage and avoiding damage, the possibility of violation of public law regulations, and the progress of negotiations, if generally exceeds the permissible limit for admission of the land owner, such construction goes beyond the scope of legitimate exercise of rights, and is evaluated as an illegal harmful act under the private law (see, e.g., Supreme Court Decision 2009Da98652, Apr. 28, 2011).

In addition, with respect to the above criteria for acceptance limits, when considering the unique characteristics of the national land of the Republic of Korea, narrowness, tendency of high-risement of buildings for the efficient use of land in large cities, and the provisions of construction-related laws and regulations on building height restrictions for securing sunlight, etc., the total sunshine hours during the eight hours between 8:00 and 16 (hereinafter referred to as "total sunlight hours") shall be secured at least four hours in total, or if the sunlight hours during the six hours between 9:00 and 15 (hereinafter referred to as " consecutive sunlight hours") are secured at least two hours, it shall not exceed the acceptance limits once, and if it does not fall under any one of the two above, it shall be deemed that the sunshine hours during the six hours between 9:0 and 15.

In this case, it is reasonable to see that the limit of admission exceeds the limit of admission.

B) the facts of recognition

In full view of evidence No. 10, evidence No. 3, and evidence No. 8 of this case, and the overall purport of the argument in this case, sunshine hours and continuous sunlight hours of the plaintiff's apartment after the construction of the new apartment, as shown in the attached Table No. 3, are acknowledged. The plaintiff's apartment complex exists or is under construction in the same direction as the plaintiff's apartment complex, the site of this case was planned to be a residential area in light of urban planning around 1998, and was set to be a Class II general residential area around 208, and the defendant obtained approval of the housing construction plan for the construction of the apartment of this case around October 2013.

C) Determination.

In addition to the purport of the entire argument in the above facts, the following circumstances, namely, ① each apartment household has secured a total sunlight time of eight hours before the new construction of the apartment, and six hours in succession. However, after the new construction of the apartment, the total sunlight time of four hours does not reach two hours and continuous sunlight time does not reach two hours. ② The apartment site of the Plaintiff was occupied around November 200 or around December 200. The apartment site of this case was planned to be a residential area in 198 in light of urban planning, or it was determined to be a Class 2 general residential area in 208, each apartment site of this case, but it can not be deemed that the Plaintiff et al. specifically predicted the sunshine interruption caused by the new construction of the apartment site of this case, or that there was no special circumstance that the Plaintiff et al. purchased the apartment building of this case after the approval of the project plan of this case. Furthermore, even if the apartment building of this case is purchased after the new construction of the apartment, the apartment site of this case can not be determined to have any extent that it could have been measured (the above.

Therefore, the defendant is responsible for compensating the plaintiff, etc. for damages caused by infringement of the right of sunshine.

D) Determination as to the Defendant’s assertion that “the absence of a claim for damages by the designated parties who lost ownership before the completion of the instant apartment building construction” was “non-existence of a claim for damages

(1) The defendant's assertion

The right to claim damages due to the infringement of the right to enjoy sunshine by the plaintiff et al. is established on March 27, 2017, when the aggregate construction of the apartment of this case was completed. The Appointed ○○○ prior thereto lost the sectional ownership of the relevant household among the plaintiff apartment of this case on November 27, 2015, and on June 2, 2016, the Selected ○○○, and OO○○ was entitled to claim damages due to the infringement of the right to enjoy sunshine following the new construction of the apartment of this case.

such person may not become such person.

(2) Facts of recognition

The following facts are recognized if the statements in Gap evidence Nos. 1, 2, 13 through 16, and Eul evidence Nos. 1 and 2 include the purport of the whole pleadings:

① On November 15, 2015, 11, 2015, ○○○ and ○○○○ sold 1/2 shares of each of the instant apartment units Nos. 304 and 104, respectively. On November 27, 2015, 1/2 shares transfer registration for the instant apartment units became final and conclusive on November 27, 2015, respectively.

B. ② Kim○-○, Lee○-○, and Lee○-○ transferred the right to claim damages arising from infringement, such as the right to enjoy sunshine of the above real estate, to the Appoint○○○, and the Selection○○ was delegated by Kim○ and Lee○○, and notified the Defendant of the fact of the transfer or takeover of the above claim.

③ On June 2, 2016, 2016, ○○○○ sold the instant apartment building 304,504 units to ○○○○○○○○, and on June 2, 2016, the registration of ownership transfer was completed on the said real estate on June 2, 2016.

④ The next ○○ transferred all of the claims related to the infringement of the right to sunshine of the said real estate to O○, and notified the recipient of the assignment of the said claim.

(3) Determination

Considering the above facts and the whole purport of the arguments and the following circumstances, it is reasonable to view that the defendant is responsible for compensating for damages caused by the obstruction of light of light due to the new construction of the apartment in this case, since the defendant's above assertion is without merit.

① The buyers purchased each of the instant apartment units 304 104 - 104 - 504 - 504 - 104 - 104 - each of the instant apartment units against the Defendant on March 27, 2017, upon completion of the framework construction of the instant apartment units. The buyers transferred the right to claim damages from the appointed buyers to the ○○○ and ○○○○.

② However, since the above purchaser acquired the ownership of the pertinent household after May 1, 2015, the apartment of this case commenced, the above purchaser's liability against the above purchaser may be more limited than the defendant's liability against the other plaintiff and the designated purchaser for the same reason as stated in the latter paragraph (3 b. 2) (b). (A) However, the limitation on liability is due to the fact that the above purchaser could have more specifically predicted the construction of the apartment of this case at the time when the above purchaser acquired the Amphart, and it is reasonable to view that such circumstance was reflected in the decision of the terms and conditions of the contract between the Selection○○, Om○ and the above purchaser, and that there is no evidence contrary to the empirical rule to view that it was reasonable to view that the remainder of the apartment of this case's right to claim damages from the purchaser of this case after the construction of the new apartment of this case was completed.

2) As to whether the plaintiff's right to view infringed

A) Relevant legal principles

In legal proceedings involving infringement of living benefits, such as reduction in the distance of closure or pressure, etc. caused by the blocking of an adjacent building, etc., arising from the construction of a building on the land, whether the infringement is unlawful beyond the generally accepted level, should be determined by social norms. Whether the infringement was committed should be determined by comprehensively taking into account the following: (a) the so-called marradation rate indicating the ratio of the size of the space, other than the damaged building, when the exterior was seen through the windows of living rooms or windows of the damaged building after a certain distance from the inside of the living room or windows of the damaged building; (b) the ratio of the size of the space where the damaged building, other than the damaged building, appears to be increased; and (c) the ratio of the size of the damaged building to blocking the outside; (d) the degree and nature of the damaged building between the damaged building and the neighboring building; (e) the overall structure of the damaged building including the location and size of the living room and the living room; (e) whether the building was in violation of public law; (d) the overall situation and public nature of the building;

B) the facts of recognition

In full view of the overall purport of the argument in this case, the appraisal of this case shows that the view rate of the plaintiff's apartment, the separation distance and the building height ratio (hereinafter "D/H ratio") of the plaintiff's apartment building, and the Y rate changed as shown in the separate sheet No. 4 before and after the construction of the apartment of this case, the appraiser has pressure when the view rate exceeds 64.5%, and the pressure is very severe when the view rate exceeds 76.0%." It is recognized that the view rate after the construction of the apartment of this case by 28 households among the plaintiff's apartment of this case reaches 1% or 196.2% after the construction of the apartment of this case, the fact that the view rate after the construction of the new apartment of this case by 28 households among the plaintiff's apartment of this case is recognized.

C) Determination

In light of the above legal principles, it is not sufficient to recognize that the above facts and the evidence submitted by the plaintiff were obstructed by the view that the construction of the apartment building of this case exceeded the acceptance limit of the plaintiff et al., and there is no other evidence to acknowledge it otherwise. Accordingly, this part of the plaintiff's assertion is without merit.

① The Plaintiff’s apartment and the instant apartment have reached an average of 88 5m (the highest of 73m, 1m, 105m) (the highest of 73m, 5m, 105m). The difference between the height of the Plaintiff’s apartment and the instant apartment is the average of 38.6m (the minimum of 19.8m, 54m, 6m).

In addition to the standard based on the above appraisal rate, the appraiser set the D/H rate between the above separation distance and the building height difference between 1.0 and 2.0, if the D/H rate is between 1.0 and 2.0, the pressure is very serious if it is less than 1.0, and the pressure is very serious if it is less than 1.0." The standard was also presented. There is no generation of less than 1.0 after the new construction of the Plaintiff apartment, and there is only 20 households for 1.0 to 2.0.0.

② The Defendant newly built the instant apartment in compliance with the various provisions of public law, such as the provision on separation distance restriction under the Building Act and subordinate statutes.

③ The apartment complex of this case is located in the Class II general residential area, and a large number of apartment complexes are located around the surrounding area. There is no ground to view that the arrangement relationship between the apartment house of this case and the plaintiff's apartment complex is the same as that of this case.

3) As to whether the Plaintiff’s privacy was infringed

In other words, the following circumstances, which are acknowledged in full view of the purport of the entire arguments as a result of the appraisal of this case, (i) the plaintiff's apartment and the apartment of this case, are now on average 88 meters (the highest 73.1m, maximum 105m) (the highest 73.1m, maximum 105m), and (ii) the appraiser classified the degree of privacy infringement as 1 to 10m, (the degree of infringement is high as the number is lower) and the degree of infringement is considered as 4 or higher. Since the new construction of the plaintiff's apartment, the degree of privacy infringement after the new construction of the new apartment of this case constitutes 8 or 9." In light of the following circumstances, the evidence submitted by the plaintiff alone is insufficient to recognize that the construction of the new apartment of this case causes an infringement of privacy exceeding the tolerance limit, and there is no other evidence to recognize it otherwise. Accordingly, the plaintiff's assertion on this part is without merit.

B. Scope of liability for damages

1) Property damages suffered by the Plaintiff, etc. due to infringement of the right to sunshine

The property damage caused by the infringement of the right to sunshine is equivalent to the market price of the building in question, unless there are special circumstances. In full view of the purport of the entire arguments as a result of the appraisal in this case, the market price decline of the plaintiff apartment due to the new construction of the apartment in this case can be recognized as the same facts as the amount stated in the corresponding column in the attached Table 2. Thus, it is reasonable to determine each of the above amounts as the amount of loss of the plaintiff in this case.

2) Limitation on liability

A) As to the remaining plaintiffs et al., excluding the Selection-○, Park ○, Park ○, and Park ○

However, the following circumstances, which are acknowledged in addition to the purport of the entire argument as seen earlier, namely, ① land owner has the power to freely use and dispose of the land within the scope of ownership, and such ownership should be protected as far as possible, ② the protection of private property rights and the protection of environmental interests constitutes an important value that requires rational harmony among all. ② The Republic of Korea is narrow in the territory of the Republic of Korea, especially in an urban area, and there is a situation where many people live in a limited area, making it difficult for any one party to guarantee sunshine benefits. ③ There is no circumstance to deem that the Defendant violated the relevant Acts and subordinate statutes related to construction while constructing the apartment in the instant case. ④ In light of the fact that the obstruction of light generated in the Plaintiff apartment due to new construction of the instant apartment does not exceed the permissible limit of admission, the tort is not established, ④ The Defendant’s liability for damages is recognized to the Defendant’s 00% limited to the Plaintiff’s 00 and the Defendant’s 70% limited to the Plaintiff’s 00 et al.

B) As to Appointor ○○, Gamb○, and Gamb○

The facts that the apartment of this case commenced on May 1, 2015 are as seen earlier, and comprehensively taking account of the overall purport of the pleadings in the written evidence Nos. 1 and 2, and No. 12 through No. 14, and No. 12 through No. 14, the Selection○ is acknowledged that he/she acquired the ownership of Plaintiff 304 Dong 601 on May 29, 2015, and the Selection○ is the ownership of Plaintiff 304 Dong 304 Dong 105 on May 21, 2015, and the Selection○○ is the Plaintiff 304 Dong 1105 on June 16, 2015.

In addition to the purport of the entire argument in the above facts, it is reasonable to limit the defendant's Appointed ○○, Park ○, and Park ○○ to 50% of the amount recognized above the liability for damages on the part of the Appointed ○○, Park ○, and Park ○○ in the case of the above 3.b. 2). In full view of the above facts, the above Appoint ○ had already been under construction of the apartment of this case at the time of the purchase of the plaintiff's apartment, and the defendant had already been under construction of the apartment of this case, and thus, it could have been anticipated that the obstruction of light caused by the construction of the apartment of this case would have been more specific than other plaintiff and the Appoint ○.

3) Consolation money

In light of the importance of sunshine in operating a pleasant residential environment, it is reasonable to deem that a person who resides in a state where the infringement of the right to sunlight exceeds the acceptable limit has suffered considerable mental suffering due to the aggravation of his/her living environment, etc. separate from property damage, and it is difficult to compensate only for property damage caused by the decline in the real estate market.

Therefore, the defendant is obligated to pay consolation money for mental distress to the plaintiff's apartment at the time of completion of the structural construction of the apartment of this case among the plaintiff's apartment of this case. When considering all the circumstances surrounding the argument of this case, such as the degree of damage to the plaintiff's apartment of this case and the period of residence, it is reasonable to determine the amount of consolation money in the attached Table 2's corresponding column.

C. Sub-determination

Therefore, the defendant is obligated to pay the amount in the corresponding column in the separate sheet No. 2 as compensation for damages caused by the infringement of the right to sunshine ( = the amount calculated by subtracting the amount already received by the plaintiff, etc. according to the settlement recommendation agreement of this case from the total amount of damages of the plaintiff, etc.) and to pay damages for delay calculated at each rate of 15% per annum as stipulated in the Civil Act from May 22, 2017, which is reasonable to dispute the existence and scope of the defendant's obligation to perform after the completion date of the framework construction of the apartment of this case, and from November 24, 2017, the date of the judgment of this case, until November 24, 2017, and from the next day to the date of full payment.

4. Conclusion

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

Judges Lee Jae-soo

Judges Cho Jong-soo

Judges Kim Chang-chul

Attached Table 1

List of Appointedmen

1. Doo-○

Gwangju City

2. ○○

Gwangju City

3. Kim○-○

Gwangju City

4. Kim○-○

Gwangju City

5. Major ○.

Gwangju City

6. Matern○○

Gwangju City

7. Forwarding ○○

Gwangju City

8. This case.

Gwangju City

19. Lighting-○

Gwangju City

10. Dried ○

Gwangju City

11. ○○

Gwangju City

12. Gambed ○

Gwangju City

13. Lighting-○

Gwangju City

14. Voluntary ○○

Gwangju City

15. Gambed ○

Gwangju City

16. ○○

Seoul

17. ○○

Gwangju City

18. ○○

Seoul

19. Voluntary ○○

Gwangju City

20. Dried ○

Gwangju City

21.O Kim-○

Seoul

22. Tracked ○

Gwangju City

23. Doo-○

Seoul

24. ○○

Gwangju City

25. Gambed ○

Seoul

26. west 20

Gwangju City

27. Handwritten ○

Gwangju City

28. In-depth ○

Seoul

29.The head of a kindergarten;

Gwangju City

30. Transmittal ○

Gwangju City

31. ○○

Gwangju City

32. Round ○

Incheon

3. Doo-○

Seoul

34. Doz. ○

Gwangju City

35. Maximum ○

Gwangju City

36. Oral ○

Gwangju City

37. Maap ○

Gwangju City

38. Newly Inserted by Act No. 500

Seoul

39. Maximum ○

Gwangju City

40. Transmittal ○

Gwangju City

41.Emba Kim-○

Gwangju City

42. Yellow ○○

Gwangju City

43. Doo-○

Gwangju City

4. Newly Inserted by Act No. 44

Gwangju City

45. Gambed ○

Gwangju City

46. Mad-○

Gwangju City

47. Doo-○

Gwangju City

48. High ○

Gwangju City

49. Maap○○

Gwangju City

50. Transmittal ○

Bocheon-si

51. Public ○

Gwangju City

52. Lighting-○

Gwangju City

53. ○○

Gwangju City

54. Gambed ○

Mayang-si

5. Gambed ○

Gwangju City

56.Electric ○

Gwangju City

List (amount-unit: Won)

A person shall be appointed.

The difference between the F column amount in the above list and the column “G” column ( = F-G) the difference between the amount stated in the above list and the amount claimed by the Plaintiff, etc.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

Attached Form 3

List

A person shall be appointed.

A person shall be appointed.

Attached Table 4

List

A person shall be appointed.

A person shall be appointed.