(영문) 부산지방법원 2014.5.22.선고 2013가합4954 판결

The defendant shall pay to the plaintiffs 15,00,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. The plaintiffs are co-owners of Busan Dong-gu A and B (hereinafter referred to as "the plaintiff's site") C Apartment (hereinafter referred to as "the plaintiff's apartment site").

B. The Korea Coast Guard Headquarters under the Ministry of National Defense is the project owner of the Defendant apartment construction project that newly constructs an apartment of 250 households (hereinafter referred to as the “Defendant, and apartment”) due to the construction of the facilities project for the Busan city's Busan city government's private investment in the land adjacent to the Plaintiffs' apartment and the site. The Defendant obtained approval from the head of Busan Metropolitan City on January 28, 2009, and entered into the said new apartment construction project on March 2009 and completed almost all the structural construction at the time of the instant lawsuit.

[Evidence Evidence: Facts without dispute, entry of Gap evidence 1 through 9 (including additional numbers), the result of appraiser E’s appraisal, the purport of the whole pleadings]

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

The plaintiffs suffered from infringement of the right to sunshine, view, and privacy due to the new construction of apartment houses by the defendant, and thereby the plaintiffs' apartment houses and housing sites have fallen and suffered from mental suffering as well as mental suffering. Therefore, the defendant is obligated to pay damages to the plaintiffs as damages for tort, which are the fall portion of the market price and consolation money of the plaintiffs' housing and housing site, and the amount of KRW 15 million.

B. Determination

1) Whether the right of sunshine has been infringed

If a land owner, etc. is deemed to have a value in an objective life that he/she had enjoyed from the previous time, it may be legally protected. In order to constitute a tort of infringement of the benefits of sunshine, the increase in the number of sunlight, that is, the number of sunlight generated by blocking sunlight due to the construction of a new building, structure, etc. in the neighboring area, should occur (see, e.g., Supreme Court en banc Decision 2006Da35865, Apr. 17, 2008; Supreme Court Decision 2008Da41499, Dec. 24, 2008).

In light of the above legal principles, in full view of the purport of the entire pleadings as a result of appraiser E’s appraisal, the following facts are revealed: (a) despite the construction of a new apartment, there is no change in the amount of sunshine that the plaintiffs have previously enjoyed as of the same day; and (b) a large number of the plaintiffs’ apartment houses, prior to the construction of a new apartment, have not been secured 4 hours out of the total of 6 hours between 9:0 and 15:00 hours during the six consecutive hours between 8:0 and 16:00 hours during the period from the same day,

Therefore, it cannot be recognized that the infringement of the right to enjoy sunshine by the defendant apartment does not exist, and the records of Gap evidence No. 11 and the images of Gap evidence No. 10 and 12 submitted by the plaintiff are insufficient to reverse this judgment, and there is no other evidence to prove the fact of infringement of the right to enjoy sunshine.

Therefore, this part of the plaintiffs' assertion is without merit.

2) Whether the view was infringed

In a lawsuit filed on the ground of infringement of living benefits, such as closure reduction, pressure, etc. due to the blocking of the view of an adjacent building, etc., caused by the construction of a building on the neighboring land, whether such infringement is unlawful beyond the generally accepted level, or not. The meaning of the building, including the overall structure of the damaged building including the overall structure of the building, the location, size, and direction of the living room, etc., the overall structure of the damaged building including the opening of the building including the building, whether the regulation on separation distance under the Building Act is violated, the construction of the damaged building including the overall structure of the damaged building in the area where the damaged building is located, the overall structure of the damaged building including the overall structure of the damaged building where the damaged building is located, whether the regulation on separation distance under the Building Act is violated, and the overall structure of the damaged building including the entire area of the building in the area where the damaged building is located, and the overall area of the damaged building including the entire area of the building in the area where the damaged building is located;

Determination should be made by comprehensively taking into account all the circumstances, such as circumstances and public nature, the prevention of the perpetrator and the possibility of avoiding damage, whether the perpetrator committed the year, whether the perpetrator’s side was the perpetrator’s side, and the follow-up relationship of land use (see Supreme Court Decision 2009Da40462, Feb. 27, 2014).

In light of the above legal principles, in full view of the purport of the entire argument as a result of the appraiser E’s appraisal, the plaintiffs’ apartment construction rate and the infringement rate of view was changed on an average as indicated below before and after the construction of the defendant apartment, and in the case of plaintiff F (1114, Dong 1014, Dong 101) with the highest infringement rate of view among the plaintiffs, it is recognized that the increase in the infringement rate of view was 27.1%

A person shall be appointed.

However, in light of the following facts and circumstances as a result of the on-site inspection by this court, even if there is a somewhat increase or decrease in the plaintiffs' Gong-A-No. 11, and the images of Gap evidence No. 10-12, which exceed the limit of admission, are insufficient to recognize that there was an infringement on view of view, such as the loss of open door, closure, or pressure due to the passage blocking exceeding the limit of admission, and there is no other evidence to acknowledge otherwise.

① In a case where the separation distance between a harming building and a harming building, the height of the harming building, and the overall area of the direction of the harming building, are specified, regardless of the separation distance, the view infringement rate is always maintained at all times, regardless of the separation distance. In such a case, even if the harming building is higher than the damaged building under social norms, the degree of the closure reduction or pressure reduction due to the view blocking is increased. As such, the view infringement rate cannot be deemed to reflect accurately the degree of the closure reduction or pressure due to the view blocking of the harming building, which is experienced in the damaged building, at all times.

② Both the Plaintiffs’ land and the Defendant’s apartment site are Class 3 general residential areas, and the Defendant complied with all relevant provisions of public law, including the relevant provisions of the Building Act that maintain a certain distance from the boundary of neighboring land when constructing the Defendant apartment.

③ Although the view of the Plaintiffs’ apartment buildings has become bad due to the construction of the Defendant apartment buildings, the separation distance between the Defendant apartment buildings and the Plaintiffs’ apartment buildings is 40.9m or 50.6m, even if based on the Plaintiffs’ apartment buildings located near the direction of the Defendant apartment buildings, which are located near the Defendant apartment buildings, and the height of the Defendant apartment buildings seems to be 5.9m or about 71.5m. In light of the separation distance between the buildings in the area where the Plaintiffs’ apartment buildings belong, the height of the buildings, and the ratio between the separation distance and the height thereof, etc., it is difficult to view that the allocation relationship between the Plaintiffs’ apartment buildings and the Defendant’s apartment buildings, such as the height and height of the Defendant apartment buildings, and the ratio between the damaged buildings, is an exceptional situation.

Therefore, this part of the plaintiffs' assertion is without merit.

3) Whether privacy is infringed

In a residential building, sunshine, view, right to privacy, etc. is a living benefit necessary for a pleasant and healthy life, and legal protection is the object of legal protection. In a case where a resident of a certain piece of land receives a direct luminous line from the surface of another person's land adjacent to it through construction of a building, etc., the user of the adjoining land suffers a disadvantage that the direct luminous line is obstructed by the construction of a building, etc., and the degree of such infringement goes beyond the generally accepted tolerance level under social norms, the building act is assessed as an act beyond the scope of legitimate right as a legitimate right, or an act leading to an abuse of rights, and thereby constitutes a tort. However, considering the tendency of high-rise of a building for the purpose of overpopulated population of a large city and efficient use of land, it is inevitable to bring about an infringement of the right to privacy, etc. in common life, so it is not unlawful if the infringement of private right does not exceed the generally accepted tolerance level under social norms.

With respect to the above criteria for the limit of tolerance, appraiser E classified the degree of privacy infringement according to the distance as 10 degrees, set the scope by the form coefficient taking into account only the distance, and determined the degree of privacy infringement by calculating the number of forms by taking into account the distance and angles with respect to the Plaintiff building subject to appraisal at the same time, and the degree of privacy infringement according to each grade is as follows.

A person shall be appointed.

According to the above classification, it seems that there is a serious violation of privacy between Grades 1 through 4, and that the limit of admission exceeds the limit of admission, but it seems that Grades 5 through 10 are within the limit of admission.

Furthermore, comprehensively taking account of the overall purport of the appraisal by appraiser E, the degree of privacy infringement caused by the construction of an apartment building by the plaintiffs can be known to the extent that it is merely a class 6 (one household of 101/314/314) or class 10 (one household of 10/314). Ultimately, in light of the above legal principles and standards, even if the plaintiffs' privacy infringement due to the construction of an apartment building by the defendant, the degree of infringement is determined

In addition, there is no other evidence to prove the fact of privacy infringement exceeding the tolerance limit, and there is no other evidence to prove that the records of No. 11 and the images of No. 10 and No. 12 submitted by the Plaintiff alone are insufficient to reverse this judgment.

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.