[1] The standard for determining the illegality in a case where a third party suffered damage due to harmful emission generated from a facility lawfully operated or provided for public use

[2] The case affirming the judgment below which held that, in case where the damage was caused by the miscarriage of the mother money from the 4.5km away from the right edge of the runway of the air base that the State installed and used as the flight training site for the air force combat aircraft, the damage was caused by noise from the air base, and the noise emission at the time and the result exceeded the tolerance limit of both the operators

[1] The illegality as a requisite for establishing a tort is not to be determined by the whole related acts, but to be determined individually and alternatively by each act in question. Thus, in a case where a third party suffers a loss due to harmful discharge from a facility lawfully operated or provided to the public, the illegality should be separately determined. The standard for determining the degree of harm is whether the degree of harm exceeds the generally accepted limit in social life. The determination of the limit of admission should be based on a case-by-case case, comprehensively taking into account not only the nature and degree of infringement of the rights and interests generally infringed, but also the contents and degree of the public nature of the infringing act, the characteristics of the local environment, environmental standards secured by public law regulations, environmental standards secured by the infringing act, the existence of measures to prevent or mitigate the infringement, and the degree of the difficulty thereof.

[2] The case affirming the judgment below which held that, in case where the damage was caused by the miscarriage of the mother money from the end of the runway of the air base located at a point 4.5km away from the end of the runway of the air base, where the State established and used the flight training site of the air force combat aircraft, the damage was caused by noise generated from the air base, on the ground that the maximum level of the noise generated from the air base was measured at a point 84 through 94dB, which is likely to cause miscarriage of 20 to 20% on the mother money in the vicinity of the said air base, and that the causes of the maternity of the mother money were presumed to be stressed from the environmental factors, not from the disease, but from the stress on the mother money in both sides, the damage was caused by noise generated from the air base, and that the noise emission at the time and the result thereof exceeded the limit of tolerance of both operators.

[1] Articles 217 and 750 of the Civil Act / [2] Articles 217 and 750 of the Civil Act

[1] Supreme Court Decision 99Da5434 delivered on February 9, 2001 (Gong2001Sang, 606) Supreme Court Decision 2001Da734 delivered on June 27, 2003 (Gong2003Ha, 1592) Supreme Court Decision 2003Da49566 Delivered on January 27, 2005 (Gong2005Sang, 301)

Korea

Defendant 1 and two others (Law Firm Han field, Attorneys Nam Nam-ok et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2005Na2279 decided Nov. 10, 2006

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

The illegality of elements for establishing tort is not determined by all relevant acts as a whole, but should be determined individually and alternatively by each act at issue. Thus, in a case where a facility is operated lawfully or provided for public use, if a third party suffers a loss due to harmful discharge water, its illegality should be separately determined. The criteria for determination in such a case are whether the degree of harm exceeds the generally accepted limit in social life (see Supreme Court Decisions 9Da55434, Feb. 9, 2001; 2001Da734, Jun. 27, 2003; 2001Da734, Jun. 27, 2003; 2005Da3665, Apr. 6, 2005). The criteria for acceptable limit should be determined individually in consideration of the specific cases, including the nature and degree of infringement as well as the nature and degree of infringement of the public nature of the infringing act, the characteristics of the region's environment, environmental standards to be secured by public law regulation, whether measures to prevent or mitigate or avoid damage, and its degree of difficulty, etc.

According to the reasoning of the judgment below, the court below determined as follows: (a) based on its adopted evidence, the plaintiff installed and used the Air Force base as a F16 mal flight training site in the air force; (b) the defendants engaged in both money operations at a place less than 4.5 km away from the end of the runway; and (c) the air base in the case of this case, several flight teams are organized to take off, landing, and holding a line training over several hundreds a day; (d) the maximum of the noise generated in the course was measured at the port of the defendants' mass at the port of the Defendant's 84 through 96dB, which could cause miscarriage of 20-30% from the mother money; (d) the plaintiff installed noise prevention walls, soundproofs, soundproofs, etc. to reduce noise; (e) there was no soundproof effect in the above two marries; and (e) the defendants' act of raising the two mars from May 200 to 10, 200.

Upon examining the reasoning of the judgment below based on the above legal principles, the above judgment of the court below is acceptable, and the judgment below did not err in the misapprehension of legal principles as otherwise alleged in the ground of appeal in relation to the determination of illegality of noise damage liability.

In addition, the ground of appeal that there was an error of incomplete deliberation in violation of the rules of evidence in the court below's fact-finding as to the population number of miscarriages and the degree of noise is merely a dispute over the selection of evidence and fact-finding belonging to the exclusive jurisdiction of the court below, which is the fact-finding court, and it cannot be deemed a legitimate ground of appeal. The ground of appeal that misunderstanding the legal principle of the burden of proof of causation is premised on the absence of proof as to the degree of

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

Justices Cha Han-sung (Presiding Justice)