(a) Whether the damage incurred by the destruction or rupture of a building due to underground excavation works is the damage equivalent to the reduced exchange value of the building due to special circumstances after the repair is sought in addition to the construction cost, such as remuneration (affirmative);

(b) The consolation money for mental damage caused by the tort, in case where the property right is infringed due to the tort;

A. In a case where an article is damaged due to a tort, the amount of the repair cost if it is possible to repair the article, and if the repair is impossible, the exchange value decrease is ordinary, and construction cost, such as remuneration, due to property damage caused by the destruction or rupture of the building due to underground excavation work, as well as the damage equivalent to the reduced exchange value of the building after the repair is claimed, shall be deemed as damage due

B. In general, in a case where a property right is infringed due to a tort of another person, mental suffering shall be deemed to have been recovered by compensating for such property damage. However, if a property damage is unable to be recovered by compensating for such property damage, this shall be deemed to be a damage caused by special circumstances.

Articles 763 and 393 of the Civil Act

A. Supreme Court Decision 87Meu1926 Decided Nov. 24, 1987 (Gong1988, 167) (Gong1989, 1157). (B) Supreme Court Decision 87Meu1096 Decided Mar. 22, 1988 (Gong1988, 675) (Gong198, 1354) (Gong1989, 1354). (b) Supreme Court Decision 88Da2728518 Decided Jan. 12, 190 (Gong1990, 460).

[Judgment of the court below]

Defendant-Appellee et al., Counsel for the defendant-appellant

Seoul High Court Decision 90Na30977 delivered on December 7, 1990

The part of the lower judgment against the Defendant regarding property damage shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal against the dismissed portion shall be assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below, based on the evidence, found that the defendant, by obtaining a construction permit from the Administrator of Gangnam-gu Office on August 1989 under the name of the defendant, engaged in underground excavation works near the ground floor of the building of this case, collapsed approximately 13 to 15 meters of the wall of this case, and the cement floor of about 10 centimeters between the wall and its building was 10 centimeters, and there was a lot of ruptures inside, outer walls and floors of the building; when the defendant performed the above underground excavation work, groundwater and soil outflow or vibration was generated when the above underground excavation work was conducted, and there was no error of law in the court below's rejection of the defendant's allegation that the defendant's repair work of this case was done without taking safety measures to prevent collapse, and there was no error of law in the misapprehension of the construction permit of this case's 1 meter, which is an order of construction work of this case, for reasons that the plaintiff's removal of the above underground excavation work of this case.

2. Based on its reasoning, the lower court determined that the Defendant’s above underground excavation work constituted KRW 16,618,696, which is the sum of KRW 8,225,000 and KRW 8,225,00 equivalent to the market price of the building expected after the repair of the building of this case, on the premise that the Plaintiff’s ordinary property damage, which the Plaintiff suffered due to the destruction or rupture of the building of this case, as seen earlier, due to the damage or rupture of the building of this case owned by the Plaintiff

However, in a case where an article was damaged due to a tort, its repair cost would be acceptable, and the exchange value would be reduced if it is impossible to repair it, and according to records (see Supreme Court Decision 81Da8, Jun. 22, 1982; Supreme Court Decision 88Meu25861, Jun. 27, 1989; Supreme Court Decision 88Meu25861, Jun. 27, 1989), the plaintiff asserts that construction cost, such as remuneration, would be spent in 8,393,696, on the premise that it is possible to repair the building of this case. Accordingly, seeking payment of the exchange value of the building of this case would be damage due to special circumstances, and there is no evidence to prove that the defendant knew or could have known the existence of such special circumstances and its circumstances, except the testimony of the witness 1 of the first instance court, which is insufficient to support this.

Nevertheless, the lower court recognized the amount of KRW 8,225,00, which is equivalent to the market price of the building, as the property damage of the instant case, by misapprehending the legal doctrine on the scope of compensation for damages in the event of damage to the goods, thereby adversely affecting the conclusion of the judgment. The allegation pointing this out

3. In general, in a case where a property right is infringed due to a tort of another person, mental suffering shall be deemed to be recovered by compensation for such property damage, but if the compensation for property damage is not sufficient to recover by itself, it shall be deemed that the consolation money can be recognized as damage due to special circumstances (see Supreme Court Decision 88Meu28518, Jan. 12, 1990; Supreme Court Decision 88Meu27249, Aug. 8, 198). Thus, as determined by the court below, if the building of this case where the plaintiff was residing was damaged to the same extent as the original adjudication due to underground excavation work, the plaintiff shall be deemed to have suffered considerable mental suffering due to its shock, apprehension of residence, etc., and the decision of the court below to recognize consolation money against the plaintiff is just and there is no error in the misapprehension of legal principles as to consolation money.

4. Therefore, the part of the judgment of the court below against the defendant regarding property damage is reversed, and that part of the case is remanded to the court below. The defendant's remaining appeal is dismissed, and the costs of appeal against the dismissed part are assessed against the defendant. It is so decided as per Disposition by the assent

Justices Kim Yong-sung (Presiding Justice)