[1] The case holding that the business owner is liable to compensate for damages under Article 31 (1) of the Framework Act on Environmental Policy in case where a subliminary fish plantation in the above aquaculture was collectively closed due to noise and vibration generated in the course of carrying earth and sand placed at a dump truck located in a nearby a plantation

[2] The relationship between the liability for damages under the Framework Act on Environmental Policy and the liability for tort under the Civil Act in the case of compensation for environmental pollution

[3] The case holding that the farmer shall be liable for damages by recognizing 30% of negligence to the farmer who demanded prompt removal of earth and sand placed in a nearby a farming place and fails to be equipped with water pumping facilities for caution ventilation or prevention of deterioration of water quality while taking out the farming place

[1] The case holding that the business owner is liable to compensate for damages under Article 31 (1) of the Framework Act on Environmental Policy in case where a subliminary fish, which is cultivated in the above aquaculture, was collectively closed due to noise and vibration generated in the course of carrying a dump truck located near the aquaculture into a dump truck

[2] Article 31(1) of the Framework Act on Environmental Policy imposes the burden of proof of the responsibility and occurrence of damages on the business operator who generates environmental pollution, and it shall be deemed as a special provision on Article 750 of the Civil Act. As such, with respect to damage compensation cases caused by environmental pollution, it shall be applied in preference to the compensation provisions under the Civil Act, regardless of whether the victim has claimed the above legal application

[3] The case holding that the farmer shall be liable for damages by recognizing 30% of negligence to the farmer who demanded prompt removal of earth and sand placed in the nearby field of the plantation and fails to be equipped with the water pumping facilities for caution ventilation or prevention of deterioration of water quality during the process of removal from the farm

[1] Article 31 (1) of the Framework Act on Environmental Policy / [2] Article 31 (1) of the Framework Act on Environmental Policy, Article 750 of the Civil Act / [3] Articles 396 and 763 of the Civil Act

Man-ju (Law Firm Bupyeong General Law Office, Attorneys Man-ju, Counsel for the plaintiff-appellant)

Incheon Metropolitan City and one other (Attorney Park Young-soo, Counsel for the plaintiff-appellant)

September 21, 2004

1. The Defendants pay to each of the Plaintiff 67,750,964 won with 5% interest per annum from January 1, 2003 to October 22, 2004, and 20% interest per annum from October 23, 2004 to full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be ten minutes and four shall be borne by the plaintiff, and the remainder by the defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 96,787,092 and 5% per annum from June 1, 2002 to the date of the instant judgment, and 20% per annum from the following day to the date of full payment.

1. Occurrence of liability for damages;

A. Facts of recognition

The following facts are not disputed between the parties, or there is no dispute between the parties, and the testimony of Gap evidence 1-1-3, Gap evidence 2-2, Eul evidence 4-5, Gap evidence 6-1 through 10, Gap evidence 7-1-7, Gap evidence 9-1 through 4, Gap evidence 10, Gap evidence 11-1, 2, Gap evidence 12, and witness testimony of Gap evidence 1-2, Eul evidence 12, and Kim Jong-soo's testimony (except for the portion rejected after the testimony of Gap evidence 3-2 and Kim Jong-soo's testimony) and this court's examination result of this court's examination of appraiser Gap evidence 1-1 through 45, Eul evidence 1-2, Eul evidence 1-2 and evidence 3-2, and there is no other relation between Gap evidence 1-1 through 45, Eul evidence 2-3 and evidence 6-2, and there is no other relation to the testimony of the appraiser of this court.

(1) The Plaintiff operated a land festival cultivation hall (hereinafter referred to as the “instant cultivation hall”) in the name of 61,200 square meters (around 18,500 square meters) of public waters created by piling a bank on the south sea of the same end (hereinafter referred to as the “Geopo-si Gapo-si”), Kimpo-si Mapo-si Gapo-si Mapo-si Mapo-si Mapo-si, Kimpo-si (hereinafter referred to as the “Mapo-si”), and cultivated the said public waters by dividing them into approximately 7,00 square meters from the south side to about 7,00 square meters, approximately 7,000 square meters, approximately 2, 3,450 square meters, and approximately 4,500 square meters.

(2) On June 200 through July 7, 2001, the Plaintiff: (a) carried approximately 12,000 mas, approximately 14,000 mas, approximately 24,000 mas, and approximately 3,00 mas to 12,000 mas, and around 24,000 mas to 3 (at the time of combining sublime and sublime in two sublime; (b) moved sublime in two sublime in two sublime and three sublime in order to prepare for sublime; (c) on April 2002, when taking into account the natural waste rate of 25,00 mas to 3 sublime in three sublime at the time of the closure of sublime (hereinafter “the closure of this case”).

(3) The defendant Incheon Metropolitan City (hereinafter referred to as the "Defendant Incheon Metropolitan City") is the execution office that ordered the bridge and road construction of the new string bridge connected to the above chemical via the above chemical mix, which is connected to the strengthening road, and the defendant Hando Construction Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") is the construction company that performed the above construction.

(4) In order to use earth and sand of about 15t dump truck from the construction section of the Incheon subway Line 2 for the soil and sand of about 15t dump truck (a approximately 10,000 cubic meters) in a new intersection connection road, Defendant Incheon City concentrated on the temporary open space located in the front of the two dump truck from January 15, 202 to the 31st of the same month from April of the same year. After that, Defendant Company began to take out the above earth and sand using approximately 3-4 dump truck and 1-2 dump truck from April 10 of the same year.

(5) From the beginning of April 200 to the beginning of May of the same year, the Plaintiff urged the Defendant company to promptly remove earth and sand, which was accumulated to ensure that the cultivation does not obstruct the Defendant company’s cultivation, while preparing to substitute the instant aquaculture No. 2. The Defendant Company promised to completely remove earth and sand from the end of May of the same year to the end of May of the same year, and concentrated heavy equipment, such as dump trucks and bumkes, and extended work during night time, all of which were 15t dump trucks and approximately 600 to 700 dump trucks from the 28th of the same month, and carried them out to the vicinity of the new string intersection.

(6) At that time, dump trucks, etc. frequently passed through the bump truck connection road between the sp truck and the cump site of the said earth and sand (the distance is about 200m or 300m or more, and dump truck was driven by a dump truck in front of 3 sp truck in the middle and the middle) and caused noise and vibration in the course of road operations by using the dump cump season, and the cump trucks in 3 dump trucks and the above dump truck came to change from around 05:00 of the same month, and all sublims of 3 dump trucks thereafter were abolished.

(7) The public noise in the ordinary road of the 3rd parallel road of this case is equivalent to 25 degrees, the underwater noise is equivalent to 96 degrees, the underwater noise is equivalent to 0.068 cm. On the other hand, the 15th parallel dump truck passes at a distance of 3 5th and 5-6 m. In the case of an empty vehicle where earth and sand are not loaded, the air noise is equivalent to 43 - in the case of an empty vehicle, the 48th parallel - the water noise is equivalent to 104-106 - the water noise of an empty vehicle is equivalent to 104-106 - the vibration is equivalent to 0.06 cm/s, the upper 076 cm is equivalent to 0.076 cm/s, the air noise was equivalent to 53-54 - 1204 - 1204 - 1504 - 104 7.2 -4 cm of this case.

(8) In general, fish exposed to noise and vibration has shown a reaction, such as an increase of the emulative speed or a rapid change of its direction, and inside and outside of the society, it has been reported to academic circles to have serious impacts on the growth of noise in the case of noise due to stress caused by vibration, especially the immunity system, etc.

(9) On the other hand, sublimination, which is somewhat far away from the 3rd place of the instant aquaculture, was cultivated normally without the foregoing waste death.

(b) Markets:

According to the above facts, it is reasonable to view that the Defendant Company concentrated dump trucks, etc. from May 24, 2002, and caused noise and vibration generated in the course of mass transport of earth and sand located in the front of the instant cultivation site through the above 3 dump road in front of the instant cultivation site (the direct cause is deemed to have occurred due to noise and vibration, which led to a low-income and upper-age of sublime fish in the 3th place of business, and the shortage of the quantity of ozone, caused soil congested, and water quality rapidly aggravated.) The Defendants are obliged to compensate the Plaintiff for the damages caused by noise and vibration, which is one of the environmental pollution caused in the above soil removal site, pursuant to Article 31(1) of the Framework Act on Environmental Policy, which provides for strict liability for environmental pollution damages (see Article 750 of the Civil Act). However, the Plaintiff is liable for damages to the Defendants on the ground of tort under Article 750 of the former Framework Act, but the provisions of Article 750 of the former Framework Act concerning environmental pollution liability and the foregoing.

2. Limitation on liability for damages;

According to the facts acknowledged above, while the plaintiff cultivated sublime in the three sublime immediately preceding sublime transportation, the plaintiff urged the defendant company to promptly remove sublime and demanded to do intensive work from May 24, 2002, and did not take measures to attract attention so as not to damage sublime cultivation in the course of the work (at that time, the defendant company did not know the sublime cultivation well). Furthermore, it seems that the plaintiff was not equipped with the water pumping equipment such as main and drainage to prevent sublime deterioration in water quality due to the above work. Such negligence of the plaintiff was the cause of the occurrence and expansion of damages caused by the closure of this case, but it does not fall short of the extent of exemption of the defendants, and thus, it should be considered in calculating the damages amount to be compensated by the defendants, but its ratio shall be set at 30% in light of the various circumstances shown in the argument of this case.

3. Scope of damages.

(a) Markets:

In this case where the plaintiff 10 months or more passed since the plaintiff 10 months passed since the plaintiff 1's occupation of noble fish and the plaintiff 10 months' cultivation was all discontinued, and the plaintiff 1 was allowed to sell sexual fish that can be used in the frequency if he was additionally trained only for 7 months from that time, and the plaintiff 10 months or more after the death of 10 months after the death of 10 months or more, it is reasonable to view the amount of damages suffered by the plaintiff due to the closure of this case as the amount equivalent to the future profit that the plaintiff could have earned due to the cultivation of noble fish.

The extent of 25,00 gresponding from 3 places of fish farm at the time of the instant death is as seen earlier, and comprehensively taking account of the overall purport of the pleading at around June through 7, 2001, the average weight per 30 gresponding period is about 250 gresponding, the average weight of 30 gresponding period is about 80 gresponding period, the average rate of life for 30 gresponding period is about 95 gresponding period, the average rate of life for 60 gresponding period is about 6,50 gresponding period is about 30 gresponding period, the average rate of life for 30 gresponding period is about 6,50 gresponding period is about 19,00 gresponding period, the average quantity of 3 gresponding period is about 2000 gs per kilogram

Therefore, in the case of fostering from May 2002 to the product size (800g), the amount of profit from the three sublime's fish amounting to KRW 96,787,092 (=123,50,000 produced amount – KRW 26,712,908).

B. Limitation on liability

As seen above, the Defendants’ liability ratio is 70%, and the amount of damages to be paid by the Defendants to the Plaintiff is 67,750,964 won (=96,787,092 x 70%).

4. Conclusion

Therefore, the defendants are obligated to claim damages for damages for each plaintiff on January 1, 2003 (the plaintiff claimed damages for delay from the closure of the case, but the plaintiff does not deduct the intermediate interest from the end of December 2002, which is the time when he continued to train sublime fishing, but it is recognized only for delay damages thereafter, instead of deducting the middle interest from the end of December 2002) until the date of this decision ( October 22, 2004), to dispute about the existence and scope of the defendant's obligation, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc. from the next day to the full payment date. Thus, the plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as it is without merit.

Judges Cho Jae-chul