[1] The standard for determining illegality in a case where a third party is damaged by harmful emission generated from a facility lawfully operated or provided for public use

[2] The meaning of “defect in the construction or maintenance of a structure” under Article 758(1) of the Civil Act, and the standard for determining whether damage from the use of a structure exceeds the third party’s “limit of participation”

[3] The allocation of burden of proof of causation in pollution lawsuits

[4] In a case where Gap, an operator of an orchard adjacent to an expressway, claimed damages against the Korea Highway Corporation on the ground that the damage, such as death of fruit trees in the orchard, etc. was caused by exhaust gas generated from the expressway and the deicing chemicals used by the Korea Highway Corporation, as the growth and fruit of fruit trees planted in the first and second heats adjoining the expressway among fruit trees planted in the orchard are considerably worse compared to those planted in other places, the case holding that in a case where Gap claimed damages against the Korea Highway Corporation on the ground that the damage, such as death of fruit trees in the orchard, etc. was caused by the exhaust gas generated from the expressway and the deicing chemicals used by the Korea Highway Corporation, etc., since the exhaust gas generated from the expressway installed and managed by the Korea Highway Corporation and the deicing chemicals ingredients, etc. of deicing chemicals spreaded by the Korea Highway Corporation reached the orchard operated by Gap, not only caused damage that with the growth and fruit of fruit trees and the sales rate of them exceeded the limit of ordinary participation, and thus, it is

[1] Illegality as a requisite for establishing a tort is not to be determined by the whole related acts, but to be determined individually and indirectly by each act at issue. Thus, where a third party suffers a loss due to harmful emission generated from a facility lawfully operated or provided for public use, its illegality should be separately determined. In this case, the standard for determination is whether the degree of harm exceeds the degree that should be generally accepted by social norms.

[2] A person who installs, preserves, and manages an expressway is obligated to compensate for any damage caused by a defect in the construction, maintenance, or management of the expressway in accordance with Article 758(1) of the Civil Act. The defect in the construction or management of a structure refers to a state in which the relevant structure does not meet safety requirements to be equipped for its intended purpose. Here, a state in which safety is not satisfied, i.e., a state in which there is a risk to harm others, includes not only a physical or external defect in the physical facility itself, which constitutes the relevant structure, or a situation in which users are not equipped with necessary physical facilities, but also a situation in which users are at risk of harm exceeding the extent that they must generally join a third party in light of social norms (hereinafter “the limit of participation”) beyond a certain limit in the course of using the structure for its original purpose. In such cases, whether there was a damage exceeding the limit of participation should be determined by comprehensively taking into account the nature and degree of the damage, the public nature of the damaged interest, the nature and public nature of the harmful act, the perpetrator’s prevention and public nature, the harmful act or the possibility of damage, whether the land exists.

[3] Generally, in a claim for damages caused by a tort, the perpetrator bears the burden of proving the causal relationship between the perpetrator's harmful act, the victim's loss, the harmful act, and the victim's loss. However, in a claim for damages caused by air pollution or water pollution, the request for scientificly strict certification of causal relationship may result in the victim's refusal of judicial relief due to pollution. However, there are many cases where the perpetrator's investigation into the cause is much more easy than the victim in technical and economic aspect, and the perpetrator may avoid the cause of the damage. As such, if the perpetrator discharges any harmful substance and the damage was caused by the arrival of the damaged object, the causal relationship between the harmful act and the victim's loss may be acknowledged unless the perpetrator proves that the damage was caused by the occurrence of the harmful substance. However, even in this case, the perpetrator discharges any harmful material, that the degree of harm exceeds generally accepted in terms of social norms, the fact that the victim reached the damaged object, and the burden of proof as to the occurrence of the damage is still borne.

[4] In a case where Gap, an operator of an orchard adjacent to an expressway, claimed damages against the Korea Highway Corporation on the ground that the damage, such as death of fruit trees in the orchard, etc. was caused by exhaust gas generated from the expressway and snow removal chemicals used by the Korea Highway Corporation, as the growth and fruit of fruit trees planted in the first and second heats adjoining the expressway among fruit trees planted in the orchard are considerably poor compared to those planted in other places, the case holding that in a case where Gap claimed damages against the Korea Highway Corporation on the ground that the damage, such as death of fruit trees in the orchard, etc. was caused by exhaust gas generated from the expressway and snow removal chemicals used by the Korea Highway Corporation, etc., since the exhaust gas generated from the expressway installed and managed by the Korea Expressway Corporation and the debris ingredients, etc. of snow removal chemicals spreaded by the Korea Expressway Corporation reached the orchard operated by Gap, not only caused damage that with the growth and fruit of fruit trees, and the sales rate of such fruit trees exceeded the limit of ordinary participation, thereby recognizing illegality.

[1] Article 750 of the Civil Act / [2] Article 758 (1) of the Civil Act / [3] Article 750 of the Civil Act, Article 288 of the Civil Procedure Act / [4] Articles 750 and 758 (1) of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 99Da55434 Decided February 9, 2001 (Gong2001Sang, 606) / [2] Supreme Court Decision 2010Da98863, 98870 Decided November 10, 201 (Gong2011Da91784 Decided September 24, 2015) (Gong2015Ha, 1596) / [3] Supreme Court Decision 2012Da1161 Decided October 11, 2013, Supreme Court Decision 2014Da67720 Decided December 29, 2016

Korea Highway Corporation (Law Firm Apam, Attorneys Kim Yong-sik, Counsel for defendant-appellee)

Defendant-Counterclaim (Law Firm Gong & Kim, Attorneys Lee Gyeong-hwan et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2014Na10790, 10806 decided June 9, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. The illegality of elements for the establishment of a tort is not to be determined by all relevant acts, but to be determined individually and indirectly by each act at issue. Thus, even in a case where a facility is legitimately operated or provided for public use, where a third party suffers damage due to harmful emission, the illegality should be determined separately. In such a case, the standard of determination is whether the degree of harm exceeds the degree that the harm should normally be identified by social norms (hereinafter “the limit of participation”). (See Supreme Court Decision 9Da55434 delivered on February 9, 2001).

A person who installs, preserves, and manages an expressway has a duty to compensate for any damage caused by a defect in the construction, maintenance, or management of the expressway pursuant to Article 758(1) of the Civil Act. The defect in the construction or maintenance of a structure refers to a state in which the relevant structure does not have safety requirements to be met for its intended purpose. Here, a state in which there is a risk of harm to others, i.e., a state in which a physical or external defect in the physical facility itself constitutes the relevant structure, or no necessary physical facility is installed, includes not only cases in which users are at risk of harm, but also cases in which a third party suffers damage exceeding a certain limit under social norms in the course of using the structure for its original purpose. In such cases, the issue of whether the limit of harm exceeds the permissible limit shall be determined by comprehensively taking into account the nature and degree of damage, the public nature of the profits from damage, the character and form of harmful act, the public nature of harmful act, the possibility of the perpetrator’s prevention of harm, the nature and purpose of the land in public law, and all circumstances surrounding land use, etc.

In general, in a claim for damages caused by a tort, the perpetrator bears the burden of proving the causal relationship between the perpetrator's harmful act, the victim's loss, the harmful act, and the victim's loss. However, in a claim for damages due to air pollution or water pollution, requiring the victim to provide a scientific strict proof of the existence of the causal relationship with respect to the existence of the factual causal relationship may result in the actual refusal of judicial relief due to pollution. However, there are many cases where the perpetrator's investigation into the cause is much more easy than the victim, as well as where the perpetrator is likely to conceal the cause of the damage. Thus, the causal relationship between the harmful act and the victim's loss may be acknowledged unless the perpetrator proves that the perpetrator discharged any harmful material and caused the damage by reaching the damaged article. However, in this case, at least, the perpetrator discharges any harmful material, the degree of the harm exceeds the limits under the social norms, the fact that the damage occurred on the damaged article, and the burden of proving the fact that the victim sustained the damage after the occurrence of the damage is still liable for the victim (see Supreme Court Decision 2160Da161616,216,2, 14,27. 1614,27.

B. The facts of the instant case acknowledged by the lower court by citing the first instance judgment are as follows.

(1) The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) is the managing authority of the ○ Highway, and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is operating the instant orchard located south of the four-lane road located on the south of the four-lane 4-lane road in the △△ branch of the ○ Highway.

(2) While the instant orchard is more than the instant ○○ Highway, the same side of the instant orchard adjoins to approximately 200 meters in the form of a little perfect slope, approximately 10 meters from the fourth-lane of the expressway, and approximately 6-7 meters from the end of the side on the fourth-lane of the expressway, and approximately 2 meters away from the end of the road, and approximately 6-7 meters away from the end of the side, and there is a wire-net fence with a height of about 2 meters at the boundary of the expressway and orchard.

(3) The average daily traffic volume on the section of the expressway abutting on the instant orchard is 57,00 vehicles in 208, 57,932 vehicles in 209, 60,894 vehicles in 2009, and 60,894 vehicles in 2010. In a case where snow is snow on the ○ Highway, the Plaintiff performed snow removal work by spraying salt calcium solution (30%) and salt at the vicinity of the floor. The quantity of calcium used in the said section is 390km in 208, 873km in 209, 980km in 201.

(4) The growth and fruit of the fruit trees planted in the first and second directions adjoining to the expressway among the fruit trees planted in the instant orchard are significantly strong compared to those planted in other places. Specifically, as of 2011, in the fruit trees in the instant orchard, the three fruit trees and one sublim tree were dead, among the fruit trees planted in the instant orchard, and the growth of 42 fruit trees and 41 peach tree significantly has been significantly low, among the fruit trees planted in the instant orchard, and as of October 2012, the two fruit trees and seven and seven and two sublim tree trees, and 26 peach tree and 56 peach tree were significantly poor.

(5) On July 4, 2011, the Defendant filed a petition with the Central Environmental Dispute Resolution Committee for adjudication claiming damages by asserting that the noise from an expressway was obstructed by water surface, and due to the exhaust gas and the use of snow removal chemicals, the Defendant suffered damage, such as withering the fruit water in the instant orchard. The Central Environmental Dispute Resolution Committee did not recognize damage caused by noise on November 3, 201, but recognized damage caused by the exhaust gas and the use of snow removal chemicals, and rendered a ruling that the Plaintiff would pay KRW 8,84,760 to the Defendant.

C. On the premise of the foregoing factual basis, the lower court determined as follows by citing the first instance judgment. In other words, in full view of the following circumstances, it is reasonable to view that the damage caused by the decrease in yield due to the failure to grow the fruit trees planted near the Highway among the instant orchard and the death of the fruit trees, was caused by the exhaust of the motor vehicle generated from the expressway managed by the Plaintiff and the scattering of the snow materials used by the Plaintiff.

(1) The continuous occurrence of a motor vehicle is known to have a negative impact on the growth of fruit trees by hindering the optical synthesis of fruit trees on roads and impairing the effective effects.

(2) It is known that salt contained in deicing chemicals adversely affect the growth of fruit trees by reducing the internal properties of plants, hindering water absorption and hindering opticalthesis, and, in depth, defoliating fruit by eight years after the end of the use of deicing chemicals.

(3) According to the expert's study, damage caused by scattering of salt by snow removal chemicals is seen to be up to 15 meters in height and up to 100 meters in surrounding areas, damage is likely to occur within 10-15 meters in surrounding areas, and damage is more likely to occur in a slope than a sloped area. The instant orchard is located in a slope located within about 10 meters in an expressway.

(4) Of the instant orchard, the sales rate of the fruit trees produced from the trees planted in the first and second column near the expressway is 5%, but the sales rate of the fruit trees produced from the trees planted in the third and subsequent column is 95%, and it is apparent that there is significant damage to the fruit trees planted in the first and second column.

(5) Since the rapid increase in the use of the Plaintiff’s snow removal system from 2009, the Defendant began to appeal against excessive water damage.

(6) As of October 2012, there is no difference between the point where the damaged trees were planted and the H concentration at another point in the instant orchard. However, in light of the expert research that, in the winter, the H of soil smelting the snow chemicals sH leveled in spring but changed from the summer to the pharmacological when it was lowered, it cannot be readily concluded that there was no damage to the snow chemicals in the instant orchard solely on the basis of the H concentration measured in October 10, 201, which was conducted in the instant orchard.

(7) Unlike the instant orchard, there is no obvious cause for damage to only the fruit trees planted adjacent to the expressway among the fruit trees of the instant orchard.

D. In accordance with the aforementioned legal principles, the following circumstances revealed by the record, namely, the Defendant had been operating the instant orchard prior to the Plaintiff’s expansion of the part adjacent to the instant orchard among the ○○ Highway into four-lanes: (a) examining the exhaust gas generated from the instant orchard installed and managed by the Plaintiff; and (b) the ingredients, etc. of heavy snow chemicals scattered by the Plaintiff reached the instant orchard operated by the Defendant, thereby causing damage to the Defendant’s operation of the instant orchard by reaching the instant orchard; and (c) as such, it can be deemed that illegality is recognized as it exceeds the ordinary participation limit.

Although the lower court did not clearly determine whether the Plaintiff’s harmful act was illegal or not, the lower court appears to have recognized the Plaintiff’s liability for damages on the premise that such illegality is recognized. In addition, there seems to be somewhat inappropriate parts of the lower court’s determination in rejecting the Nonparty’s appraisal result, however, the lower court did not seem to have determined that the burden of proof for the liability for the arrival of hazardous substances was on the premise

Ultimately, the lower court did not err in its judgment by misapprehending the legal principles as to the tort that affected the conclusion of the judgment, failing to exhaust all necessary deliberations, failing to exhaust all necessary deliberations, or omitting the burden of proof of pollution lawsuits.

2. As to the third ground for appeal

According to the reasoning of the judgment below, the court below recognized the fact that the sales ratio of the fruit trees produced from other fruit trees among the instant orchard was 95%, and that the sales ratio of the fruit trees produced from the damaged trees was 5%, and calculated the amount of damages by deeming the damage ratio of the damaged trees as 90%, and it is clear that it limits the Plaintiff’s liability by deeming that natural capabilities, such as the East Sea, contributed to the occurrence of the damage suffered by the Defendant. Therefore, the court below’s decision that did not limit the Plaintiff’s liability by recognizing the liability for all property damage suffered by the Defendant, which did not err in the misapprehension of the legal principles on

3. Conclusion

The appeal is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)