2012Kahap874 Disposition of Suspension or Leave of Works

1. A, etc.;

Attorney Song-ho et al., Counsel for the defendant-appellant-appellant

B Stock Company

Law Firm Maduk, Attorney Dog-gu, Counsel for the plaintiff-appellant-appellant

June 12, 2013

1. Each of the instant applications is dismissed.

2. The costs of the lawsuit shall be borne by the applicant.

1. The debtor is among C Apartments under construction on the south-gu ground (hereinafter referred to as "the apartment of this case").

Schedule 103 Dong 103 shall be 20 stories above ground; 104 Dong 19 stories above ground; 105 Dong 105 shall be 15 stories above ground;

203Dong 21st floor above ground, and 204 Dong 204 shall have all new construction works exceeding 21st floor above ground

subsection (1) of this section.

2. Execution officers entrusted by the obligees shall make public the purport under the preceding paragraph in an adequate manner.

1. Facts of recognition;

According to the whole purport of the record and examination of this case, the obligees are 17 parcels in total, including Ulsan-gu located north of the new construction site, 103 units, 104 units, 105 units, 203 units, 204 units, and 204 units of the apartment of this case.

The 19 houses and 3 apartment buildings (hereinafter referred to as the "damageed buildings of this case") are people living in the 19 apartment buildings and the debtor is the owner and the 24th unit owner of the new apartment construction of this case. The 103 apartment buildings of this case are the 103 apartment buildings of this case, the 23th unit of the 104 unit, the 104 unit of the 105 unit, the 18 unit of the 105 unit, the 203 unit of the 204 unit of the 26th unit of the 204 unit of the apartment building.

2. The assertion and judgment

A. The assertion

If the obligees newly built the apartment of this case according to the scheduled purpose, the obligees suffered infringement of their right to sunshine exceeding the tolerance limit due to a significant decrease in the total sunshine time and continuous sunlighting time, and the obligees may cause irreparable damage to the obligees due to such infringement of right to sunshine. Thus, the obligees seek a prohibition of new construction exceeding a certain number of floors among the apartment of this case as stated in the purport of application against the obligor.

B. Determination

In a case where a resident on a neighboring land suffers a disadvantage that a straight luminous line is cut off due to the new construction of a building, in order to be evaluated as an illegal and harmful act beyond the scope of legitimate exercise of the right, the degree of the obstruction of light shall exceed the generally accepted tolerance limit under the generally accepted social norms. Whether the obstruction of light has exceeded the tolerance limit under the generally accepted social norms shall be determined by comprehensively considering all the circumstances, such as the degree of the year during which the obstruction of light occurred, the nature of the damaged interest and its social evaluation, the use of the damaged interest and its regional nature, the ex-post relationship of the earth, the possibility of preventing and avoiding damage, the possibility of avoiding damage, the violation of public law regulations, and the progress of negotiations, etc. (see Supreme Court Decision 2002Da63565, Oct. 28, 2004, etc.). Further, in a case where the infringement of the right to sunshine is judged to be unlawful beyond the tolerance limit, the right to seek a strong prohibition of interference or prevention as well as the right to claim damages.

In full view of the records of this case, appraiser D's appraisal result, and the whole purport of the examination, if the apartment building of this case is newly constructed as scheduled, it is recognized that there is a substantial decrease in the total number of sunshine and continuous sunshine hours to the creditors, but on the other hand, the apartment of this case is owned by the debtor.

In the new construction of B, there is no reason to deem that buildings owned by creditors A, F, H, and N contain neighborhood living facilities other than residence, and it is difficult to deem that the infringement of the right to enjoy sunshine has occurred to this part as a resident. ③ The apartment site of this case is not only the apartment site of this case, but also the creditors' residence.

The lands were designated as housing redevelopment project area on May 18, 2006, Ulsan Metropolitan City 2006 - Notice 2006 -**** the obligees could have sufficiently anticipated that they will be able to construct the apartment on the same floor as the apartment of this case. ④ The sales contract for the total 1,085 households of this case was concluded most at the present. ⑤ The obligees may recover monetary damages against the debtor even after the completion of the new construction of this case, and the obligees may seek monetary compensation for their losses. The obligees shall negotiate with the debtor upon the application of this case.

Considering the fact that the obstruction of sunshine as seen earlier intended to receive damages, it is reasonable to view that the obligee’s right to seek the prohibition of new construction exceeding a certain number of floors of the apartment of this case and the need to preserve the right to seek the prohibition of new construction exceeding a certain number of floors of the apartment of this case is not clearly explained, and there is no other person to recognize the same differently.

3. Conclusion

Therefore, the obligees' motion of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Jeong Jae-chul

Judges Park Young-young

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