(영문) 인천지방법원 2016.11.29.선고 2015가단202000 판결

1. The defendant shall pay to the plaintiff 6, 429, 440 won with 5% interest per annum from May 28, 2015 to November 29, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, the costs of appraisal shall be borne by the Plaintiff and the Defendant respectively, and the costs of lawsuit other than the costs of appraisal shall be borne by each party.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 22, 423, 400 won with 5% interest per annum from May 28, 2015 to the delivery day of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. The plaintiff is the owner of the Incheon apartment house located in Incheon (hereinafter referred to as "the plaintiff's house"), and the defendant is the owner who newly constructed a factory building of six-story size on the ground immediately adjacent to the above house (hereinafter referred to as "Defendant factory").

B. Nonparty C, the spouse of the Plaintiff, purchased the above apartment house around September 30, 198, and completed the registration of ownership transfer on the above apartment house around November 3, 1988. Nonparty C, the Plaintiff, around February 21, 2005, donated the above apartment house to Nonparty C.

C. The defendant factory is located on the south side of the plaintiff's housing, and the place where the plaintiff's housing and the defendant's factory are located is a quasi industrial area, but the apartment and other residential areas are mixed around.

D. The Plaintiff’s housing has a living room, window 1, and 2 in the direction of the Defendant factory. The change of sunshine hours due to the construction of the Defendant factory (attached Table 1), the change of view (attached Table 2), and the change of privacy (attached Table 3) are as shown in attached Table 1.

[Ground for Recognition] Unsatisfy, Gap evidence 1, 2, and 4, Eul evidence 13

Each description of each lot number, including lot number, hereinafter the same shall apply), and a request for appraisal of appraiser D of this court

As a result, the purport of the whole pleading

2. Parties’ assertion

The plaintiff asserts that the defendant's new construction of the defendant factory infringed the right to sunshine and privacy operated by the plaintiff in the plaintiff's housing, and that the degree of such infringement constitutes a tort against the plaintiff beyond the tolerance limit under the social norms, and that the defendant is obligated to compensate the plaintiff for property damage amounting to 22, 423, 400 won and the above 20,000,000 won and the above 22,423,400 won and damages for delay.

In this regard, the defendant asserts that there is no infringement of the right to light beyond the limit of admission, such as the plaintiff's assertion, and even if domestic affairs are recognized, the plaintiff's claim amount is excessive, so it cannot respond to the plaintiff's claim.

3. Determination:

(a) Occurrence of liability for damages;

1) Part on the violation of the right to sunshine

A) In the event that a resident on adjoining land suffers a disadvantage by blocking direct light from 6 hours from the construction of a new building, if the construction of the new building goes beyond the scope of legitimate exercise of rights, the degree of the sunshine interference shall exceed the tolerance limit which is generally accepted by social norms. If there are directly simple regulations on the sunshine interference in the relevant Acts and subordinate statutes, such as the Building Act, it shall be an important determination material in determining the illegality of the construction. However, if it is intended to secure sunshine under the public law regulations as far as possible in terms of public law, it shall be deemed as a minimum standard for protecting the right to sunshine, barring any special circumstance. More than 6 hours in specific light, if the construction of a new building conforms to the public law regulations in the form of 6 hours at the time of construction, it shall be deemed that the construction of the new building goes beyond the tolerance limit of 5 hours, and it shall be determined as 6 hours in consideration of the degree of damages which goes beyond the tolerance limit of social norms, the nature of damages and the nature of the building, and the possibility of the land utilization.

B) In light of the above legal principles, with respect to the instant case’s dwelling room and room 1, as seen earlier, the construction of the Defendant factory did not meet the total sunshine hours of 4 hours and 2 hours per annum even before the construction of the Defendant factory, and there was no particular change before and after the construction of the Defendant factory, and thus, the construction of the Defendant factory exceeded the tolerance limit. As to the Plaintiff’s dwelling room 2, it is difficult to see that the construction of the Defendant factory caused the infringement of sunshine exceeding the tolerance limit. ② As to the Plaintiff’s dwelling room 2, the total sunshine hours and continuous sunlight hours of 4 hours and eight minutes due to the construction of the Defendant factory reduced the total sunlight hours of 4 hours and continuous sunlight hours of 8 minutes due to the construction of the Defendant factory, so it is reasonable to view that the infringement of sunshine that exceeded the tolerance limit has occurred due to the construction of the Defendant factory.

C) Therefore, barring special circumstances, the Defendant is obligated to compensate the Plaintiff for damages arising from the infringement of the right to sunshine part 2 of the Plaintiff’s house.

2) Part on privacy infringement

Considering the high-rises of buildings for the congested population and efficient use of land in large cities, tendency of high density, etc., privacy infringement to a certain degree is inevitable due to social life, and in order to be assessed as illegal harmful acts under private law, the degree of such infringement should exceed the tolerance limit generally accepted by social norms.

In light of the above legal principles, according to the division of appraisal commission with regard to appraiser D of this court, appraiser D is divided into Grade 1 to Grade 10, and considering the window of the plaintiff's home and the distance to the defendant factory, it can be recognized that the violation of the plaintiff's access due to the defendant factory falls under Grade 1 (the extent that it is possible to observe the face tag). Thus, it is reasonable to view that the construction of the defendant factory caused the violation of privacy exceeding the tolerance limit due to the construction of the defendant factory.

Therefore, barring special circumstances, the Defendant is obligated to compensate the Plaintiff for damages caused by invasion of privacy.

B. Limitation on liability

In light of the following circumstances: (a) land owner, in principle, has the authority to freely use and profit from the land within the scope of ownership; (b) protection of private property rights and protection of environmental interests are important values that need rational harmony among the two; (c) it is difficult for any one party to guarantee sunshine benefits absolutely; and (c) the current status of the use of the land adjacent to the Plaintiff’s housing and the current status of the construction of surrounding buildings, etc. in consideration of the following circumstances: (a) land owner, in principle, has the right to freely use and profit from the land within the scope of ownership; and (d) protection of private property rights and the protection of environmental interests fall under the important values that need mutual harmony among the two; and (d) the Plaintiff’s property damage should be imposed on the Defendant as a whole on the land of the Defendant’s factory; and (d) it is difficult to see that the Plaintiff could not at all expect the construction of a factory in the same size as that of the Defendant’s factory; and (e) in light of the degree of infringement of Plaintiff’s sunshine and privacy; and (e) the Plaintiff’s property damage principle.

C. Scope of liability for damages

1) Property losses;

A) It is reasonable to view that the Plaintiff’s loss in the mountain accrued due to the Plaintiff’s infringement of the right to sunshine and private life following the new construction of the Defendant factory is the amount equivalent to the market price decline in the Plaintiff’s housing and housing site. The market price decline can be calculated by the formula of “X-value decline rate (less there is no infringement of sunshine, etc.)” of the basic amount.

According to the above evidence, the basic price of the Plaintiff’s housing is KRW 22,00,00, and the basic price of the said housing site (112.75m) is 161,00,000, and 000, and the market price decline rate and market price decline in the Plaintiff’s housing and its site due to the construction of the Defendant factory can be recognized as follows. Thus, the Plaintiff’s property damage is KRW 1,786,80, and 800.

A person shall be appointed.

B) As to the calculation of the above value decline rate, the plaintiff argued that the height of the pattern is calculated based only on the same ring day, which is the lowest rate of infringement due to the low height of the pattern, and it is true that it is calculated on the basis of an average infringement rate of one year. In accordance with the above standard, the damage amount on the property reaches KRW 2,423,400. Thus, in the compensation for damages caused by the sunlight, it is determined whether there is considerable damage exceeding the acceptable limit that can be socially acceptable, considering various factors on the basis of the reduction of sunshine. The plaintiff's assertion in this part of the premise is without merit, since it is calculated on the basis of the amount of damages calculated on the basis of the minimum amount of sunshine guaranteed since the height of the pattern was the lowest and the period during one year is also the lowest, and the period during which the pattern was kept is calculated on the basis of the amount of damages on the same day.

C) Meanwhile, the Defendant alleged that the Plaintiff, as the Plaintiff’s owner of the Plaintiff’s housing, has a 1/2 share of the Plaintiff’s housing site on May 225, 225, and that only KRW 788,90, which is half of the market price of the Plaintiff’s housing site, should be recognized. As seen earlier, the Defendant asserted that only half of the market price of the said land should be recognized. As seen earlier, the Plaintiff’s basic price of the Plaintiff’s housing site portion (161,00,000 square meters) is not a total of 225 square meters, but a basic price of the Plaintiff’s housing site portion (161,75 square meters) is KRW 161,00,000, this part of the Defendant’s assertion is without merit.

2) Consolation money

In light of the importance of securing sunlight, etc. in operating a pleasant residential environment, it is reasonable to view that the plaintiff, who was actually residing in the state that the sunshine and privacy infringement exceeded the tolerance limit, had suffered considerable mental suffering in the daily life due to the construction of the factory of the defendant, separate from property damage caused by the decline in the market price, due to the construction of the factory of the defendant, and the infringement of sunshine and privacy. This is difficult to completely keep up with the compensation for property damage recognized above. Thus, the defendant is obliged to pay consolation money for mental suffering to the plaintiff.

Furthermore, the amount of consolation money to be paid by the defendant shall be determined at KRW 5,00,00 in consideration of all the circumstances revealed in the proceedings of the pleading in this case, such as the degree of damage suffered by the plaintiff, the period in which the plaintiff resided in the original house, etc.

3) Sub-decisions

Therefore, the Defendant is obligated to pay to the Plaintiff 6, 429, 440 won ( = Property damage 1,429, 440 won ( = 1,786, 800 won x 80%) + 5,000 consolation money, and 00 won as requested by the Plaintiff as to the existence and scope of the Defendant’s factory from May 28, 2015, which is the date the approval for use of the Defendant’s factory was issued until November 29, 2016, to pay damages for delay at the rate of 15% per annum as stipulated in the Civil Act, from May 28, 2015, which is the date the Defendant issued the instant judgment, until November 29, 2016, and from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.