(영문) 서울중앙지방법원 2015.9.25.선고 2013가합505176 판결

1. The Plaintiff (Counterclaim Defendant)’s Defendant (Counterclaim Plaintiff, Counterclaim Party, Counterclaim Party, and the Defendants listed in the annexed Table No. 223, 240, and 747 in the aggregate of the cited amounts of the financial decision under the same Table against each of the Defendants listed in the annexed Table No. 223, 240, and 747, and the obligation to pay damages calculated at the rate of 20% per annum from December 13, 2012 to the date of full payment, and the obligation to pay damages for delay calculated by the Plaintiff’s internal circulation to the Defendants listed in the attached Table No. 223, 240, and 747, the noise generated from the internal circulation to the Defendant (Counterclaim Plaintiff, Counterclaim Party, Lessee Party, and Counterclaim Party) *** * * * * on the basis of the apartment residential household, there is no obligation to establish and implement noise mitigation measures to reduce noise, including night, to the extent below 65dB (A).

2. The defendant (Counterclaim Plaintiff, the appointed party)'s counterclaim is dismissed.

3. Of the costs of lawsuit, the part relating to the principal lawsuit is assessed against the Defendant (Counterclaim Plaintiff, Appointed Party, Appointed Party) and the Defendants as indicated in the No. 223, 240, and 747, respectively, and the part pertaining to the counterclaim is assessed against the Defendant (Counterclaim Plaintiff, Appointed Party, etc.).

Purport of claim

Main Office: § 1.1.

Counterclaim: Plaintiff (Counterclaim Defendant) may claim a counterclaim against the person who indicated the “O” in attached Table 1 to the same Table.

The sum of the amounts stated in the column for filing the counterclaim of this case from April 30, 2014 to the money and the claims for the counterclaim of this case, and

Until the delivery date of a copy of the application for change of the cause of the claim, 5% per annum and 5% per annum from the following day to the full payment date.

20 2,200,000 won and this shall apply to the Defendant (Counterclaim Plaintiff, Appointed Party) with 20% interest.

shall be calculated at the rate of 20% per annum from the day after the copy of the counterclaim of this case is served to the day of complete payment.

each one shall pay the same money.

Reasons

1. Basic facts

A. The Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) is the manager of the internal cycle, who is a motorway of 22 km in total length and 23 to 27 km in width (4 to 6 lanes) connecting Seongdong-gu Seoul, Seongdong-gu, Seoul, to Sungdong-dong.

2) Defendant (Counterclaim Plaintiff, Appointed Party) and Defendant (Appointed Party) * Dong************** the council of occupants’ representatives of apartment buildings (hereinafter referred to as the “Defendant’s council of occupants’ representatives”) are the autonomous management body composed of occupants of Seongbuk-gu Seoul******************* apartment (name prior to the alteration, hereinafter referred to as the “instant apartment”).

3) The designated parties and the Defendants listed in [Attachment 223, 240, 747 [Attachment 223] and the Defendants (hereinafter collectively referred to as “Defendants individual”, and the Defendant’s council of occupants’ representatives and the Defendant’s individual members referred to as “the Defendants”) are those who have resided or resided in the apartment of this case, or their successors.

B. The construction of the instant road and apartment complex and the internal circulation 1) began around 1990, and the entire section was opened around April 1999. The part adjacent to the instant apartment among the internal circulation (hereinafter referred to as the “road”) was constructed at a high level of 15 meters above the ground and was opened around February 1999.

2)* The Saemaul Reconstruction Association (hereinafter referred to as the “Association of this case”) filed an application for the approval of the project plan of this case around September 1999, and obtained the approval of the project plan from the head of Seongbuk-gu Seoul. The apartment of this case was commenced around August 2002 and completed around 7 Dong-dong 355 and around 22-25 stories above ground level on December 2004.

3) A part of the Defendant’s individuals, as the instant members, were either sold in lots or occupied as a non-member, and some of them were purchased or leased from the buyer and occupied by the buyer.

C. The present condition of the instant road and apartment buildings is located in the general residential area under the urban management plan. The present status of the instant road and apartment buildings adjacent thereto is as follows, and the nearest household to the instant road is about 15 meters away from the 106 Dong-dong 1Ra.

[Along on the road of this case and apartment, the road of this case and the apartment of this case are the height of 15 meters (the height of the five floors of the apartment of this case) and the road of this case is 26 meters (the six-lanes from each other). The central road of this case and the road of this case have a protection wall of 1 meter high, and there is a soundproof wall and noise reduction device of 2 meters high above. The noise reduction device is installed only on the soundproof wall of the opposite side of the road of this case (sloping mountain direction) at the time of application for the Central Environmental Dispute Mediation Committee, which will be seen below, and was installed above on the soundproof wall of the road of this case around April 2014, which is facing the financial decision. 3) The speed of the road of this case is the speed of 80km of the road of this case and the vehicle of this case by year and below.

D. The 916 apartment resident resident of the instant apartment and the Defendant’s representative council (the Defendants subject to the first principal lawsuit)

On May 6, 2012, the Central Environmental Dispute Resolution Committee dismissed an application for adjudication against the plaintiff, the entrusted manager, the Seoul Facilities Management Corporation, the apartment construction corporation of this case, the apartment construction corporation of this case** Construction Co., Ltd. (hereinafter referred to as "** Construction") for the compensation of mental damage, etc. and the request for soundproof measures with respect to noise caused by the vehicle passing through the road of this case (central exchange Article 12-12-3-63). (2) The Central Environmental Dispute Resolution Committee dismissed the application for adjudication against the Seoul Facilities Management Corporation of Seoul on December 6, 2012, while the plaintiff and the construction* the applicant and the applicants living in less than 65dB (A) of the noise level including night noise were dismissed, and the applicant and the defendant's council members' representatives' representatives' representatives' representatives' representatives' representatives' request for adjudication was referred to in the following 20.

The Plaintiff and* Construction jointly and severally, ① the above 753 persons jointly and severally file a lawsuit against the Defendants applying for adjudication seeking confirmation of non-existence of an obligation based on the fiscal decision of this case to the Seoul Central District Court (No. 2013Gahap8927) * Construction filed a lawsuit against the Defendants applying for adjudication seeking confirmation of non-existence of an obligation based on the fiscal decision of this case (No. 2013Gahap8927).

On February 12, 2015, * Construction was not a co-owner of the instant apartment construction project or a party to the sales contract, and thus, it cannot be deemed that a joint implementer of the instant apartment construction project or a party to the sales contract bears liability for tort liability, default liability, and warranty liability with respect to the apartment noise of this case * Construction Litigation was affirmed around that time (in respect of some Defendants, ** Until a judgment in favor of all the Defendants was rendered and confirmed separately).

E. According to the noise assessment report (No. 1, 204) that was submitted at the time of approval for the use of the apartment of this case, the noise level of the apartment of this case was calculated on the basis of the average of the first and fifth stories of 106, the first and second stories of 106, and the average noise level of the second and second stories of 5, as follows (hereinafter referred to as “DB(A) at night. 2) The National Environmental Dispute Resolution Committee (hereinafter referred to as “A”) conducted by the National Environmental Dispute Resolution Committee at the time of the on-site investigation on October 17, 2012, as follows.

3) Upon the request of the Defendant’s council of occupants’ representatives, the noise measurement result that was conducted by the Daedae Environmental Research Institute Co., Ltd. with respect to 18 households of the instant apartment from October 30, 2012 to October 31, 2012 was conducted with respect to the instant apartment from October 30, 2012, as follows: 62-76dB (A) and at night 63-7dB (A).

4) After the Plaintiff installed noise monitoring devices on the soundproof walls of the instant road around April 2014, the noise level of 107 apartment buildings of this case measured by the Plaintiff is as follows.

F. According to related laws and regulations, Article 12(2) of the Framework Act on Environmental Policy and Article 2 of the Enforcement Decree of the same Act [Attachment 1] of the Enforcement Decree of the same Act, the noise standards for the road-based general residential area in which the apartment of this case belongs are set at a week (0: 00 to 22:0) Leq 65dB (A) a week (2: 00 to 06: 00) a night (22: 06: 00) a minimum of 55dB (A) a year. 2) Noise and Vibration Control Act, Articles 26 and 27 of the Noise and Vibration Control Act, Article 25 of the Enforcement Rule of the same Act [Attachment 12] of the same Act and Article 25 of the Enforcement Decree of the same Act [Attachment 12]

The noise limit in the fixed residential area is set at Ler 68dB (A) and at night (2:0 to 06:0) Ler 68dB) and at night (22: 00 to 06: 00), Leq 58dB (A).

3) Article 21-5 of the Housing Act and Article 9(1) of the Regulations on Standards, etc. of Housing Construction provide that, if the noise level of a branch where a apartment house is constructed is not less than 65dB, the project undertaker, who implements the housing construction project after obtaining approval, shall install soundproof facilities, such as soundproof walls and forest belts, so that the noise level of the construction branch of the apartment house is less than 65dB.

[Ground of recognition] Facts without dispute, Gap 1 through 6, 8, 11 through 13, 15 evidence (including branch numbers, if any), Eul 7 and 8 evidence, and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff's assertion

The noise generated from the road of this case is within the limit of the acceptance limit. Even if it goes beyond the acceptance limit, in light of the fact that the construction of the apartment of this case and the occupancy of the apartment of this case were conducted after the opening of the road of this case, the plaintiff's liability should be exempted. Therefore, there is no obligation to pay damages and to establish and implement noise reduction measures against the defendants in accordance with the financial decision of this case.

B. Summary of the defendants' assertion

Since Defendant individuals suffered damages exceeding the tolerance limit due to noise generated from the road of this case, the Plaintiff, as a manager of the road of this case, is obligated to compensate for the amount indicated in the aggregate column of the amount of mental damage or the portion of inheritance for mental damage suffered from May 29, 2009 to April 30, 2014 to the Defendant’s individual under Article 5(1) of the State Compensation Act, the amount of noise measurement expenses incurred in the course of the instant ruling to the Defendant’s council of occupants’ representatives, 2.2 million won and damages for delay. In addition, the noise measurement expenses spent by the Defendant’s council in the course of the instant ruling to the Plaintiff’s council of occupants’ representatives, as the cost incurred without any legal cause or duty, the Plaintiff is obligated to pay the above amount in repayment of the cost arising from return of unjust enrichment or management of affairs to the Defendant’s council

3. Whether or not there exists an obligation to pay damages, and to establish and implement noise reduction measures;

A. Relevant legal principles

"Defect in the construction or management of a public structure" under Article 5 (1) of the State Compensation Act refers to a state in which the public structure, which has been donated for a public purpose, is not equipped with safety requirements to be equipped for that purpose. In this context, the state in which safety is not satisfied, that is, the state in which there is a danger of harm to others, includes not only the state in which there is a risk of harm to its users due to physical or external defects or deficiency in the physical facility itself which constitutes the public structure, but also the state in which the public structure is used for a public purpose and the degree in its use exceeds a certain limit that is expected to be acceptable under the social norms to third parties.

On the other hand, the owner or possessor of a building may demand the maintenance of noise damage or the right of possession in a case where his/her ownership or possession infringes on the living benefits which can enjoy a sound and pleasant daily life due to nearby noise, and such infringement goes beyond the generally accepted limit under the social norms. A claim for maintenance to the effect that noise generated from a road does not flow out beyond a certain limit on the basis of the residents’ houses damaged by the road is prohibited by specifying noise generating source to a certain degree of interference with a certain kind of daily life. If such a judgment becomes final and conclusive, it may be executed by indirect compulsory performance pursuant to Article 261(1) of the Civil Execution Act.

Furthermore, in determining the criteria for limits of admission, individual cases should be determined on a case-by-case basis, comprehensively taking into account various circumstances, such as the nature and degree of infringement as well as the degree of infringement generally infringed rights or interests, the nature and characteristics of the local environment, environmental standards secured by public law regulations, environmental standards to be ensured by public law, whether measures to prevent or mitigate infringement or avoid damage, and the degree of difficulty thereof (see Supreme Court Decisions 2004Da37904, 37911, Jun. 15, 2007; 2008Da9358, Aug. 21, 2008, etc.).

B. Determination

According to the above facts and the purport of the oral argument, the noise level of many households of the apartment of this case exceeds the noise level in the residential area which is required by the administrative laws, such as the Framework Act on Environmental Policy and the Noise and Vibration Control Act, and the two-lanes of the road of this case* even if there are two-lanes on the lower part of the road of this case, there are transparent and absorption walls with a height of 5 to 7 meters at the place where the apartment complex of this case and the apartment complex of this case are exempted, and the major noise cost of the household at a height above the road of this case is recognized as the road of this case in light of the road of this case and the use form of the sub-road of this case.

However, considering the following circumstances revealed by the aforementioned evidence, Gap evidence Nos. 9 and 16 and the purport of the entire pleadings, the above facts alone are insufficient to recognize that the noise generated on the road of this case has infringed upon the residents of the apartment of this case beyond the tolerance limit, and there is no other evidence to prove otherwise.

1) Circumstances for the construction and sale of the instant apartment

① On February 199, the instant road was opened at a high level of 15 meters above the ground and 27 meters wide (six-lanes), and the instant association filed an application for approval of the project plan for the instant apartment building on a scale of 22 or more floors above the ground level around September 1999, which is thereafter thereafter.

(2) The head of Seongbuk-gu Office has approved a conditional project plan on June 2002, and among them, the conditions for approval related to the book of noise prevention unit shall be as follows (No. 4).

Article 9 of the Regulations on Standards, etc. of Housing Construction that requires that the noise level of the construction site of multi-family housing should be less than 65§¯ level through the arrangement of buildings with a height of 50 meters from the noise source (high-speed roads and roads not less than 20 meters), or through the installation of flood belts and soundproof facilities, etc., shall be implemented so that the noise level of the construction site of multi-family housing does not conflict with the provisions of Article 9 of the Regulations on Standards, etc. of Housing Construction that should be less than 65§¯ level. It must be informed from the prospective occupants in the future that the same is not to file a civil petition regarding the noise of the above road. The public announcement of apartment sale in this case included the purport that the public announcement of apartment sale in this case may not raise an objection against the noise of the road in this case, as in the above conditions of the project plan. The general apartment sale contract in this case also includes the content that "the location of this apartment can have a vehicle noise in contact with the road (including circular roads) and it is not possible to raise an objection in this regard.

④ However, the instant association constructed the instant apartment in violation of the terms and conditions of the project plan approval related to noise prevention measures. That is, the Plaintiff, the nearest 106 Ra, 15 meters adjacent to the instant road, did not meet the aforementioned long-distance conditions, such as the instant apartment site boundary (i.e., the instant apartment site boundary line, i., the transparent and smoking soundproof walls with a height of 5 to 7 meters on the lower side of the instant road), and no soundproof facilities were installed to prevent noise generated on the instant road.

⑤ According to the noise assessment report drawn up around November 2004, which was prepared by Daeil-si, Inc. at the time of approval for the use of the apartment of this case, the noise level of 106 units of the apartment of this case was measured as 60.2dB (A), 58.9dB (A), 106 units of the apartment of this case was measured as 69.3dB (A), 68.3dB at night, 68.9dB (A), and 64.0dB (A) at night, and the average noise level was measured as 64.12.2)

2) Special characteristics of the instant road and the neighboring environment of the apartment.

① The instant association established a new construction plan of 22 or more floors on the site adjacent to the instant road at a height of 15 meters adjacent to the instant road, and implemented a project plan on the condition that the noise-related statutes, such as Article 9 of the Regulations on Standards, etc. for Housing Construction, and the measures to prevent noise were prepared, but the instant apartment was built in violation of the above conditions.

② At the time when the road of this case was commenced and opened, the site of this case appears to have been a house lower than the road of this case. In light of the noise level of low floor of the apartment of this case and the mode of use of the road of this case and the subordinate road, it cannot be readily concluded that the noise generated from the road of this case at the time of opening the road of this case exceeds the noise level or the tolerance limit in the residential area which requires administrative laws and regulations in the existing residential space.

③ The traffic volume of the instant road from around 2005 to around 2006, immediately after the completion of an apartment building, began to reduce the traffic volume from that time. There are no circumstances to deem that there was a special increase in the traffic volume of the instant road compared to that of the time of occupancy. The Plaintiff, even after the completion of the instant apartment building, measures to reduce noise by installing soundproof walls and noise monitoring devices on the instant road, etc.

207.

④ At the time of opening the instant road, it appears that there was no noise damage exceeding the noise level in an adjacent residential space, and there was no reason to deem that the noise level generated on the road thereafter increased, the instant apartment was constructed in violation of noise-related Acts and subordinate statutes and approval of the project plan, and the noise exceeding the noise level in the residential area, which is required by administrative laws and regulations, was generated.

3) A person who was a member of the instant apartment resident, among the Defendant’s individual, applied for the approval of the instant apartment construction project plan with respect to the construction of the instant apartment at least 22 stories above the ground after the construction of the instant road at a height of 15 meters, and the construction of the instant apartment was carried out upon approval of the project plan subject to compliance with noise-related statutes and adoption of noise prevention measures.

② The general buyers among the Defendant’s individuals confirmed the content of the sale notice and the sales contract to the effect that the noise from the road of this case may occur in the apartment of this case, and that no objection may be raised thereto, and entered into the apartment of this case.

③ Even in the case of the Defendants who reside in the purchase or lease of the instant apartment, in light of the general fact that it is possible to confirm the current status of the instant apartment before the purchase or lease, and that the occupants of the Republic of Korea continuously demand the resolution of noise problems caused by the instant road to the Plaintiff, Seongbuk-gu Office,* Construction, etc. since October 2005, it is recognized that the noise generated from the instant apartment can be confirmed and the degree of damage caused thereby.

④ The Defendants, who resided in or resided in the apartment of this case, have occupied the apartment of this case while recognizing the fact that noise occurred and may incur damage therefrom on the road of this case, can be deemed to have accessed the noise damage risk area while allowing noise damage. In this case, it is reasonable to set the tolerance limit for noise higher than general cases.

4) Degree of damage, and the degree of difficulties in measures to prevent and mitigate infringement;

① Contents of the instant road’s noise do not directly harm the surface of the water, stimulation, interference with television, and interference with radio listening, and mental suffering and living harm caused by such malicious circulation, and do not directly harm life and body. On the other hand, the instant road is part of the road’s internal cycle, which is a motorway of the Seoul Southernbuk-gu, a total length of 22 km across the Seoul Southernbuk-gu, in order to resolve traffic accidents and cope with traffic demands, is 22 km and the width of 23 to 27 meters (round 4 to 6 lanes).

② In order to reduce the noise level of roads adjacent to the residential space of high-rises, there is a limit only to increase the height of soundproof walls of roads. Other noise reduction measures include a method of installing soundproof tunnels on the whole lane of multiple or rounding roads. However, enormous budget is inevitably required, which eventually leads to the burden of ordinary citizens. Therefore, in cases where a high-rise residential space is constructed on an adjacent road after the opening of a road, which is a public facility, it is reasonable to allow a project operator who intends to newly construct a multi-family housing to devise and implement a noise prevention plan by himself/herself rather than requiring the installation and manager of a road to take additional noise prevention measures by inserting the budget.

③ The recent increase in the number of cases of new construction of high-rise apartment houses for the purpose of the motor vehicle model that has already been opened through the city center or for the purpose of view in the Han River or in the area adjacent to the railroad due to redevelopment, reconstruction, etc. Since profits from such large-scale development projects accrue to the project undertaker, it is consistent with the principle of beneficiary burden to have the project undertaker bear the costs incurred in implementing noise prevention measures to maintain the peaceful living of the occupants. Therefore, when approving the project plan, a person authorized to approve project plans imposes substantial noise prevention measures in accordance with the relevant statutes, such as the Housing Act and regulations on the housing construction standards, etc., as a condition for approving the project (see Article 21-5 of the Housing Act). If a multi-family housing is newly constructed due to a violation of such approval conditions, it is necessary to take strong sanctions such as

④ In the instant apartment building, there is a limit to the installation of soundproof walls to reduce noise level, and the installation of soundproof tunnels, etc. requires enormous budget. However, this is because the instant apartment building was constructed near the instant road without preparing noise prevention measures without violating noise-related Acts and subordinate statutes and approval of project plans. Therefore, it is unreasonable to impose the responsibility to reduce noise level on the installer and manager of the road.

C. Sub-decision

Therefore, it cannot be said that there is any defect in installation and management that generates noise exceeding the tolerance limit of the residents of the apartment of this case on the road of this case. Thus, it is clear that there is no obligation to pay damages according to the financial decision of this case to the defendants of the plaintiff's application for adjudication, the designated parties 23, 240, and the defendants as their successors (the defendants as stated in the attached Table No. 223, 240, 747). In addition, as long as there is no infringement of living benefits exceeding the tolerance limit, it is not acknowledged that the plaintiff among the defendants of this case, there is no obligation to establish and implement noise reduction measures for the defendants who reside in the apartment of this case to make night noise less than 65dB (A) on the basis of living household of the defendants, and there is no obligation to establish and implement the above noise reduction measures against the defendants who do not reside in the apartment of this case.

4. Whether the obligation to return unjust enrichment and to reimburse expenses within the management of affairs exists;

Even if the defendant's representative council paid KRW 2.2 million to the noise measurement cost in the case of the application for adjudication of this case, there is no evidence to acknowledge that the plaintiff gained profit or that the defendant's representative council paid it to the defendant's representative council, and therefore there is no obligation to return unjust enrichment to the defendant's representative council or to reimburse expenses incurred in the management of affairs.

5. Conclusion

Therefore, each of the above obligations against the Defendants did not exist, and as long as the Defendants dispute this, there is a benefit to seek confirmation, and there is no reason to claim damages against the Defendants, claim for restitution of unjust enrichment, and claim for reimbursement of expenses based on office management.

Therefore, the plaintiff's main claim is justified, and the counterclaim by the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Yoonn-heer of the presiding judge

Judges Park Jae-young

Judges, Senior Superintendent-General

Site of separate sheet

A person shall be appointed.

Note tin

1) On December 6, 2012, the Plaintiff’s obligation to compensate for delay from the date on which the original copy of its ruling was served on the Plaintiff.

Although the absence of such judgment is confirmed, the above ruling order the delay damages from the day after delivery of the original copy of the ruling.

The "date of service" is clear that it is a clerical error on the day following the service.

2) This is a noise measurement standard for the old apartment housing that was in force at the time [No. 463 of the Notice of Construction Book ( October 15, 1986)], which was enacted, and December 12, 2007.

The actual noise level of the first floor and the fifth floor for the apartment houses with 5 or more stories, respectively, announced by the Ministry of Construction and Transportation (amended by Act No. 2007 - 573).

This seems to be due to the fact that the noise level, which is an arithmetic mean of the predicted noise level, was defined as the measurement noise level.

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