Korea Highway Corporation (Law Firm Jeong, Attorneys Im Jae-soo et al., Counsel for the defendant-appellant)

Defendant 1 and 87 others (Law Firm Han-gu, Attorneys No Young-chul et al., Counsel for the defendant-appellant)

Busancheon-si (Law Firm Han-gu, Attorneys Han Young-chul et al., Counsel for the plaintiff-appellant)

may 25, 2004

Suwon District Court Decision 2002Gahap1044 decided Oct. 2, 2003, 2002Gahap2139 decided Oct. 2, 2003

1. The plaintiff's appeal against the defendant father-si and the incidental appeal against the defendant father-si shall be dismissed in entirety.

2. All appeals filed by the Plaintiff (Counterclaim Defendant) against the remainder of the Defendant (Counterclaim Plaintiff), except the Defendant Non-Sincheon-si, are dismissed.

3. Of the costs of the trial in the first instance, the portion arising from an appeal by the plaintiff (Counterclaim defendant) shall be borne by the plaintiff (Counterclaim defendant) and by the incidental appeal by the defendant (Incheon City), by the incidental Si/Ycheon-si, respectively.

1. Purport of claim

A. Main action

(1) The Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) confirmed that the Defendant (Counterclaim Plaintiff; hereinafter the Defendant) listed in the separate sheet did not have an obligation to reinforce the height of soundproof walls installed in front of the Bupyeong-si (Seocheon-si omitted) from among the sections of the exclusive road between Bupyeong-Seoul and Seocheon-si to prevent the noise level of the said Defendants’ housing from exceeding 65dB (A) and that there is no obligation to pay the amount equivalent to the financial amount of each Defendant listed in the separate sheet as compensation for damages caused by noise of the exclusive road between Bupyeong-Seoul and by the Defendant listed in the separate sheet (the Plaintiff did not specify the degree of the obligation to reinforce the height of soundproof walls seeking non-existence confirmation in its claim, but did not object to the Central Environmental Dispute Mediation Committee. Therefore, it is deemed that the Plaintiff’s housing noise level is seeking confirmation of the absence of soundproof walls reinforcement obligation to the extent that the noise level of the said Defendants’ housing does not exceed 65dB (A)).

(2) Defendant Seocheon-si paid KRW 126,80,000 to the Plaintiff (the Plaintiff extended the claim in the trial).

(b) Anti-action;

(1) The Plaintiff shall pay to the Defendants listed in the separate sheet 5% interest per annum from February 15, 2002 to the service date of a copy of the instant counterclaim from February 15, 2002, and 25% interest per annum from the next day to the full payment date.

(2) The Plaintiff shall install soundproof facilities to prevent noise from flowing into more than 65dB (A) on the basis of the Defendants’ houses listed in the separate sheet.

(3) In the event of violation of the order under paragraph (2), the Plaintiff shall pay to the Defendants listed in the separate sheet in the separate sheet a sum of KRW 50,000 per day (the part seeking indirect compulsory performance was excluded from the scope of the immediate trial due to the said Defendants’ failure to appeal even though the claim was dismissed in the judgment of the court of first instance).

2. Purport of appeal

A. Of the judgment of the first instance court, the part against the Defendants listed in the separate sheet against the Plaintiff is revoked, and the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) against the Defendant (Counterclaim Plaintiff; hereinafter the Defendant) listed in the separate sheet, confirmed that there is no obligation to reinforce the height of soundproof walls installed in the front of the Bupyeong-si, Macheon-si (three times omitted) among the part of the ordinary-monthly Highway, to ensure that the noise level of the said Defendants’ housing does not exceed 65DB (A), and that there is no obligation to pay the amount equivalent to each financial amount listed in the same list as damages due to the noise of the Bupyeong-Seoul Expressway, and all of the Defendants’ counterclaim claims listed in the separate sheet corresponding to the above revoked part are dismissed.

B. Defendant Busan District Court additionally paid KRW 70,800,000 to the Plaintiff.

3. Purport of incidental appeal;

In the judgment of the court of first instance, the part against the defendant father-si shall be revoked, and the plaintiff's claim against the defendant father-si shall be dismissed.

1. Whether the Plaintiff’s appeal against the Defendantbucheon-si and the incidental appeal against the Defendantbucheon-si is lawful

First, an appeal can only be filed against a judgment disadvantageous to himself/herself, and the decision unfavorable to an appellant shall be determined at the time of the filing of the appeal on the basis of the order of the judgment. Therefore, an appeal filed by a party who has received the judgment in favor of the entire court in the first instance for the purpose of expanding the purport of the appeal does not have any interest in the appeal unless there are special circumstances (see Supreme Court Decision 83Da515, Oct. 25, 1983). In this case, the fact that the plaintiff filed an appeal in order to expand the purport of the appeal even though he/she received the judgment in favor of the entire defendant Seocheon-si in the first instance, is obvious in the record, and there are no special circumstances to establish a legitimate appeal. Thus, the appeal filed against the plaintiff in this case against the defendant Seocheon-si is unlawful because there is no interest in

Next, the incidental appeal, which is filed after the right to appeal expires after the period of appeal expires, shall lose its effect in cases where the appeal is withdrawn or dismissed on account of its nature as a dependent on the appeal (Article 404 of the Civil Procedure Act), and it is evident in the record that the incidental appeal filed against the plaintiff in this case by the defendant Seocheon-si, which is filed against the plaintiff, is filed after the period of appeal expires, and as seen earlier, it is reasonable that the appeal filed against the plaintiff in this case against the plaintiff is against the law that the appeal against the defendant Seocheon-si will be dismissed on account of its illegality. Therefore, the incidental appeal against the defendant Seocheon-si

2. Quotation of judgment of the first instance;

The remaining reasons for the judgment to be stated in this decision are as follows, except for the addition of some of the following judgments, given that the reasons for the first instance judgment between the Plaintiff and the Defendants listed in the separate sheet are the same as the reasons for the judgment.

(Supplementary Parts)

① The Plaintiff disposed of the owner of the above-mentioned highway by around one year before its construction completion, and made it possible to construct housing on its ground, and even before its construction completion, it could have known that the construction was conducted, such as labing, etc. even before 5 months prior to the completion of the expanded construction, the Plaintiff installed only soundproof walls up to 4.5 meters which have failed to take such measures, even if it was possible to install any soundproof walls in excess of the appropriate size, by investigating the size of the Defendants’ housing before the completion of the expanded construction, and predicting the degree of noise around the expressway, which might have been after its expansion construction. ② The Plaintiff failed to take any other necessary measures in order to raise the noise level of 60 million won due to the increase in traffic volume after the expanding construction on the expressway, and ③ the Plaintiff’s additional noise level of 13 billion won and 5.5 billion won in the construction of soundproof walls is likely to cause the above-mentioned noise level to have been increased by 70 billion won and 5 billion won in the construction of the above site.

3. Conclusion

Therefore, the judgment of the court of first instance against the remaining Defendants except for the defendant Seocheon-si is justifiable, and all of the plaintiff's appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the appeal against the defendant Seocheon-si and the incidental appeal against the defendant Seocheon-si.

Judges Park Jong-dae (Presiding Judge)