Plaintiff

1. The term “the term” means “the term” means “the term “the term” means “the term”

November 5, 2010

Seoul Central District Court Decision 2009Da202053 Decided June 29, 2010

1. The part against the defendant in the judgment of the first instance shall be revoked, and all of the plaintiff's claims corresponding to the above revocation shall be dismissed;

2. The plaintiff's incidental appeal and the claim extended in the trial are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall remove the roof and walls (including the structures listed in the attached list 2; hereinafter the same shall apply) listed in the attached list 1, and the wall and roof listed in the attached list 3, and shall pay 20% interest per annum from December 9, 2008 to the date of complete payment (the plaintiff shall change the preliminary claim from the trial to the primary claim, and expand the claim) to the plaintiff.

2. Purport of appeal

A. The defendant's purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and all the plaintiff's claims corresponding to the above revocation shall be dismissed.

B. The plaintiff's incidental appeal

The judgment of the first instance court shall be modified as follows. The defendant shall remove the roof and walls (including the structures listed in the attached Table 2) listed in the attached Table 1 list, and the fence and roof listed in the attached Table 3, and shall pay to the plaintiff 4,104,302, and 20% interest per annum from December 9, 2008 to the date of complete payment.

1. Basic facts

A. The Plaintiff is the owner of the building of approximately 309 square meters and the second floor above ground (hereinafter “Plaintiff-owned site”) in Jongno-gu Seoul Metropolitan Government (number 1 omitted) and the Defendant is the owner of the building of the second floor adjacent to the building site owned by the Plaintiff, Jongno-gu Seoul Metropolitan Government (number 2 omitted) and the second floor inspection of the second floor above ground (hereinafter “Defendant-owned site”).

B. The boundary line between the Plaintiff’s ownership and the site owned by the Defendant is the line that connects 15 and 14 of the Map No. 4. (hereinafter “the instant boundary line”), and the Defendant, around 2006, installed a wall with the width of 18cm from 15 points located on the instant boundary line to the wall center line in sequence of 18cm. The distance from 15 points located on the instant boundary line is 30cm, the distance from 14 points to the wall center line is 15cm, and the distance from 39cm from the wall center line is 39cm or more, and the eaves part of the eaves part of the roof as indicated in the Schedule No. 1 in the Schedule No. 1 is not harming the instant boundary line.

C. Meanwhile, the Defendant constructed the Han-dong, Jongno-gu, Seoul (Land Number 3 omitted) road (hereinafter “Road”) and installed a fence and a roof on the ground as stated in the attached Table 3 on the ground that part 4 of the same drawings, which are part of the roads (number 18, 19, 20, 40, and 5, connected each point of 6.9 square meters in sequence, which are part of the roads (number 3 omitted) of Jongno-gu, Seoul (hereinafter “road”) and installed a fence and a roof on the ground. Accordingly, the sewage district located outside the wall was naturally discharged from the site owned by the Plaintiff, which is the notifying party through the said sewage district.

[Reasons for Recognition] A without dispute, Gap 1, 2 (including each number), Eul 1-1-1-18, the result of the on-site inspection by the court of the first instance, the result of the survey and appraisal by the non-party 1 of the first instance court, the purport of the whole pleadings

2. Determination

A. Summary of the plaintiff's assertion

The plaintiff asserts that, in installing the roof and walls listed in the separate sheet No. 1 list, the defendant should remove the roof and walls listed in the separate sheet No. 1 list and the right to freely use the existing sewage system by installing the fence and the roof (number No. 3 omitted) so that the plaintiff could not use the sewage system already used by the plaintiff, and the fence and the roof listed in the separate sheet No. 3 should be removed in the separate sheet No. 4 should also be removed.

In addition, the plaintiff's failure to observe the separation distance of 50 cm as stipulated in the Civil Act in installing the roof and walls listed in the separate sheet No. 1 attached hereto, thereby causing damage to the plaintiff. <2> The plaintiff's building owned by the plaintiff was polluted by rainwater as the eavesd part of the roof listed in the separate sheet No. 1 falls into the plaintiff's site, and ③ In installing the roof and walls listed in the separate sheet No. 1, it infringed the plaintiff's right to enjoy sunshine by failing to observe the separation distance of 2 m as stipulated in the Building Act, and ④ by installing the fence and roof listed in the separate sheet No. 3, it infringed the plaintiff's right to enjoy sewage and the right to freely use the road. Thus, the plaintiff's right to use the wall and the road is claimed to be liable for damages as to the above various acts of infringement.

Finally, the plaintiff has destroyed the plaintiff's door and fence in the process of installing a wall and roof as stated in the attached list 3 list, and the defendant asserts that the amount equivalent to the same amount should be paid to the plaintiff, since the amount of 4,104,320 won is required to restore it.

B. Determination

1) Determination on the application for removal of the roof and walls listed in the attached Table 1 list

A) Determination on the removal claim based on a violation of the separation distance under the Civil Act

(1) Determination on the walls listed in the separate sheet No. 1

As recognized earlier, the centerline of the wall installed by the Defendant in the vicinity of the instant boundary line is at least 15 cm away from the instant boundary line, and the wall listed in the separate sheet No. 1 is at least 39 cm away from the wall center line. Accordingly, the wall listed in the separate sheet No. 1 is at least 54 cm (=15 cm + 39 cm) away from the instant boundary line, and the Plaintiff’s above assertion is without merit, premised on the premise that the wall listed in the separate sheet No. 1 is located within 50 cm, a separation distance under the Civil Act.

(2) Determination on the roof listed in the annex 1 list

On the other hand, Article 242(1) of the Civil Act provides that the construction of a building shall be at least a half-meter distance from the boundary, unless there is a special custom, but this does not mean that the outer wall of the building should be separated from the boundary of an adjacent site for more than 50cm, or that the roof or eaves, etc. should be separated and constructed more than 50cm from the adjacent site. As recognized above, the plaintiff cannot seek removal of the above roof unless the roof listed in the attached Table 1 does not intrude the boundary of the case. Thus, the plaintiff's assertion seeking removal of the roof listed in the attached Table 1 does not have any reason (in addition, it is evident that the plaintiff cannot seek removal on the ground that the plaintiff violated the separation distance under the Civil Act as long as the building of the defendant was completed already).

B) Determination on the removal claim on the ground of the violation of the separation distance under the Building Act

In full view of the purport of the argument as a whole in each video of No. 17-8 and No. 9, the defendant's building owned by the defendant shall have a separation distance of not less than 2 meters as prescribed by the Building Act from the boundary line of this case located in the due north, with respect to the height of not less than 4 meters of the building located within Class 1 general residential area. However, it is recognized that the wall and roof in the separate sheet No. 1 did not secure two meters from the boundary line of this case. However, it is difficult to deem that the neighboring land owner has the right to seek removal of the building in violation of the separation distance due to the failure to observe the separation distance under the Building Act, and even if such right is recognized, the following specific circumstances, namely, (i) the roof in the separate sheet No. 1 does not intrude the boundary line of this case, (iii) the separation distance in the separate sheet No. 1 under the Civil Act is likely to exceed the plaintiff's right to claim removal of the building in this case, and (iv) the removal quantity of the building already owned by the plaintiff.

2) Determination as to the claim for removal of fences and roof in the separate sheet No. 3

In full view of the purport of the argument as a result of the survey and appraisal by Non-Party 1 of the first instance trial appraiser non-party 1, it is acknowledged that the Defendant installed a fence and roof on the road (number 3 omitted) as shown in the separate sheet 13, 12, Mara, 14, and 13 in sequence with each point indicated in the separate sheet 4 drawings attached hereto. The Plaintiff did not successively connect the part of the Plaintiff with each point listed in the separate sheet 13, 12, Mara, 14, 13, and the Defendant attached Form 4 drawings attached hereto, 18, 19, 20, Ma, and Ma in sequence with each point listed in the separate sheet 6.9mm2 attached hereto. Accordingly, it can be found that the agreement between the Plaintiff and the Defendant that the Plaintiff should be paid a 6.9m2 size off the above part of the ship and accordingly, the Plaintiff’s assertion that the Defendant installed a fence and roof listed in the separate sheet 3 attached hereto without the Plaintiff’s consent.

3) Determination on the claim for payment of money

A) Determination on the claim for damages on the ground of a violation of the separation distance under the Civil Act

As seen above, it is reasonable to deem that the Defendant complied with the distance of 50cc under the Civil Act, and therefore, the Plaintiff’s claim for damages on this part is without merit.

B) Determination as to the claim for damages due to falling trees

It is insufficient to recognize the fact that the falling trees are contaminated with rainwater by the Plaintiff’s building located in the eavesd part of the roof listed in the attached Table 1 list by only the descriptions and images of Gap 4 through 6, and 17 (including each number). Since there is no other evidence to acknowledge it, this part of the Plaintiff’s claim for damages is without merit (In other words, the roof listed in the attached Table 1 does not intrude the boundary of this case, while the roof listed in the attached Table 1 does not intrude the boundary of this case, while the Plaintiff was using part of the land owned by the Defendant as its own housing site by breaking the boundary of this case, and the Defendant took measures to prevent the falling water from falling on the Plaintiff’s own housing site by installing the facilities installed on the roof listed in the attached Table 1 list).

C) Determination on the claim for damages caused by infringement of the right to sunshine

In full view of the overall purport of the pleadings and arguments of evidence Nos. 4, 5, 9, 10, and 17 (including various numbers), the plaintiff's claim for damages is without merit, since it is recognized that the defendant's roof as stated in the attached list No. 1 installed by the defendant may reduce the amount of sunshine, but there is no evidence to acknowledge that the degree exceeded the limit of tolerance that can be socially acceptable.

D) Determination as to the claim for damages arising from the infringement of leisure water and road usage rights

As recognized earlier, the defendant installed a fence and roof listed in the attached Table 3 list with the consent of the plaintiff. Thus, this part of the plaintiff's claim for damages is without merit.

E) Determination on the claim for damages equivalent to the restoration cost

As recognized earlier, the defendant installed a fence and roof listed in the attached Table 3 list with the consent of the plaintiff, and it is reasonable to deem that the plaintiff's door and wall already installed in the process were damaged. Thus, it is reasonable to deem that the plaintiff's consent was also made. Thus, this part of the plaintiff's claim for damages is without merit.

3. Conclusion

The plaintiff's claim of this case shall be dismissed due to the lack of any ground. Since the part against the defendant in the judgment of the court of first instance against the defendant is unfair with different conclusions, it shall be revoked, and all of the plaintiff's claim corresponding to the above cancellation part shall be dismissed, and since the plaintiff's incidental appeal and the claim extended in the trial are without merit, it shall be dismissed, and

[Attachment]

Judges Kim Jong-chul (Presiding Judge) and Kim Jong-young

1) The purport of the Civil Act to maintain the separation distance of 50cm is to ensure that there is no inconvenience in the construction or repair work of a building, to facilitate ventilation, eging, etc., and to ensure that fire-fighting is not difficult when a fire occurred. In light of the purport of the provision, it is reasonable to keep the separation distance of 50cm on the basis of the outer wall, not the roof or eaves, which is the outer wall. For reference, Article 225 of the Civil Act imposes an obligation on the landowner to install appropriate facilities so that water away from the eavess does not directly fall into adjoining neighbors. In light of this, it is reasonable to keep the separation distance of 50cm on the basis of the outer wall, not the roof or eavess.

2) The owner of adjoining land under Article 242(2) of the Civil Act may request the person who has violated the provisions of the preceding paragraph to alter or remove the building. However, only damages may be claimed after one year has elapsed since the commencement of the construction work or after the completion of the construction work.

3) In light of the fact that, even before the construction of Han-dong Building owned by the Defendant, there were buildings similar to those owned by the Defendant on the site owned by the Defendant, and the Plaintiff’s land is located in the notification unit rather than the Defendant’s land, and the Plaintiff’s housing is constructed at a higher location than 1.5 meters from the ground, etc., it is difficult to view that even if the Defendant failed to observe the separation distance under the Building Act and reduced the Plaintiff’s amount of sunlight

Note 4) It shall be pointed out that the authority to seek removal of the fence and roof listed in the attached Table 3 does not arise to the Plaintiff solely on the ground that the Jongno-gu Office ordered removal of the fence and roof listed in the attached Table 3 list.