Plaintiff (Law Firm continental, Attorneys Hun-Ba et al., Counsel for the plaintiff-appellant)

Defendant 1 and 2 (Law Firmcheon, Attorneys Cho Jae-soo et al., Counsel for the defendant-appellant)

January 24, 2008

Seoul Southern District Court Decision 2002Gahap15185 Delivered on October 8, 2004

1. Of the judgment of the court of first instance, the part against the plaintiff (appointed party) ordering payment shall be revoked.

Defendant 1 shall pay to Appointors 23,00,000 won, 10,000 won to Appointors 4, and 5% per annum from December 4, 2002 to February 14, 2008, and 20% per annum from February 15, 2008 to the day of full payment.

2. The remaining appeals by the Plaintiff (Appointed Party) against Defendant 1 and the appeals by Defendant 2 and Defendant Gangseo-gu Seoul Metropolitan Government are dismissed, respectively.

3. The 70% of the total litigation cost incurred between the plaintiff (appointed party) and the defendant 1 shall be borne by the plaintiff (appointed party), the remainder of 30% shall be borne by the defendant 1, and the costs of appeal against the plaintiff (appointed party) and the defendant Gangseo-gu Seoul Metropolitan Government shall be borne by the plaintiff (Appointed party).

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. Defendant 1 shall pay 48,30,00 won to the Plaintiff (appointed party; hereinafter referred to as the “Plaintiff”) 2,75,949,800 won, 18,000 won to the Appointed 3,000 won, 24,000 won per annum from December 4, 2002 to the date of the first instance judgment, 5% interest per annum from the next day to the date of full payment, 200% interest per annum to the Plaintiff. Defendant 2 shall pay to the Plaintiff 11,00,000, 222,000,000 won per annum to the Appoint 3,00,000 won per annum from the next day to the date of full payment, and 10% interest per annum to the above 10,000 won per annum to the Appoint 20,000 won per annum and 20% interest per annum to the Appoint 3,1001,2000

1. Quotation of judgment of the first instance;

This court's reasoning is as follows: (a) and (5) of the reasoning of the judgment of the court of first instance shall be changed in accordance with paragraphs (2) and (3) below, and (b) of the third 15 and the third 16 "the location of the site of this case and the location of the site of this case 1, 2, and 3 shall be the same as that of the relevant part of the reasoning of the judgment of the court of first instance, except for changing "the owner, who is the owner," to "the location of the site of this case and the site of this case 1, 2,

2. Article 4-4 (d) (property damage caused by the infringement of the right to sunshine and view) among the grounds for the judgment of the court of first instance;

A. Determination on the assertion of property damage caused by sunshine interruption

(1) As to Defendant 1

㈎ 건축법 등 관계 법령에 일조(일조)방해에 관한 직접적인 단속법규가 있다면 그 법규에 적합한지 여부가 사법상 위법성을 판단함에 있어서 중요한 판단자료가 될 것이지만, 이러한 공법적 규제에 의하여 확보하고자 하는 일조는 원래 사법상 보호되는 일조권을 공법적인 면에서도 가능한 한 보증하려는 것으로서 특별한 사정이 없는 한 일조권 보호를 위한 최소한도의 기준으로 봄이 상당하고, 구체적 경우에 있어서는 어떠한 신축 건물이 건축 당시의 공법적 규제에 형식적으로 적합하더라도 현실적인 일조방해의 정도가 커 사회통념상 수인한도를 넘은 경우에는 위법행위로 평가될 수 있다( 대법원 2000. 5. 16. 선고 98다56997 판결 등 참조).

㈏ 돌이켜 이 사건에 관하여 보건대, 이 법원의 현장검증결과와 당심 감정인 이영규의 일조권 감정결과(3회에 걸친 일조권 감정 및 위 감정인에 대한 사실조회 회신 포함)에 변론 전체의 취지를 보태어 보면, 이 사건 건물 및 이 사건 건물과 인접한 서울 강서구 화곡동 (지번 5 생략) 지상 건물(이하 ‘인접 건물’이라 한다)로 인한 제1대지 및 주택과 제2대지 및 주택의 일조량 변화는 별지 『일조량 변화표』 기재와 같은 사실을 인정할 수 있고 반증이 없는바, 비록 이 사건 건물이 건축법 등 관계 법령에 적합하게 건축되었다 할지라도, 앞서 본 법리와 위 인정사실에 비추어 볼 때 이 사건 건물 내지 이 사건 건물과 인접 건물로 인한 제1대지 및 주택과 제2대지 및 주택의 일조방해는 사회통념상 수인한도를 넘은 경우에 해당하여 위법행위로 평가된다고 봄이 상당하고, 따라서 이 사건 건물을 신축한 피고 1은 제1대지 및 주택의 소유자 선정자 2와 제2대지 및 주택의 소유자 선정자 4에게 그들이 이 사건 건물로 인한 일조방해로 입게 된 손해를 배상할 의무가 있다.

On the other hand, the plaintiff asserts that he himself was the owner of the second floor among the sites and houses, and that he suffered damage to the sunshine interruption due to the building in this case. However, each statement of evidence Nos. 25-1, 2, and 164 is insufficient to recognize that the plaintiff is the owner of the second floor among the sites and houses, and there is no other evidence to support that the plaintiff suffered damage to the sunshine interruption due to the building in this case, the plaintiff's above assertion is rejected.

In addition, although Appointed 3 asserts that the building of this case causes damage to the sunshine interruption, it is not sufficient to recognize that the land and the building of this case owned by Appointed 3, 134, 168, and 171 are in danger of sunshine interruption due to the building of this case, and there is no other evidence to acknowledge it, the Selection 3's above assertion is not accepted.

㈐ 나아가 피고 1이 선정자 2와 선정자 4에게 배상하여야 할 손해액에 관하여 살피건대, 당심 감정인 장대섭의 시가 감정결과(위 감정인에 대한 사실조회 회신 포함)에 변론 전체의 취지를 보태어 보면, 제1대지 및 주택과 제2대지 및 주택에 관하여 이 사건 건물이나 인접 건물로 인한 일조방해가 전혀 없다고 가정할 경우의 제1대지 및 주택과 제2대지 및 주택의 정상가격은 각 361,873,000원(대지 331,134,000원, 건물 30,739,000원)과 308,082,000 주1) 원 (대지 298,914,000원, 건물 9,168,000원)으로, 또한 이 사건 건물이 존재하지 않고 단지 인접 건물만이 존재하여 인접 건물로 인한 일조방해만이 있다고 가정할 경우의 제1대지 및 주택과 제2대지 및 주택의 정상가격은 각 352,233,000원(대지 321,494,000원, 건물 30,739,000원)과 298,842,000원(대지 289,674,000원, 건물 9,168,000원)으로 각 예상 평가됨에 반하여, 이 사건 건물과 인접 건물로 인해 일조방해를 받고 있는 현재의 제1대지 및 주택과 제2대지 및 주택의 시가는 각 319,939,000원(대지 289,200,000원, 건물 30,739,000원)과 271,122,000원(대지 261,954,000원, 건물 9,168,000원)으로 평가되는 사실을 인정할 수 있고 반증이 없는바, 위 인정사실에 의하면, 이 사건 건물과 인접 건물로 인한 일조방해로 인하여 제1대지 및 주택과 제2대지 및 주택의 가격하락액이 각 41,934,000원(＝361,873,000원－319,939,000원, 위 가격하락액은 순전히 대지 부분의 가격하락액이다. 이하 같다)과 36,960,000원(＝308,082,000원－271,122,000원)에 이르고, 인접 건물로 인한 일조방해가 있는 상태에서 이 사건 건물로 인한 일조방해로 인하여 제1대지 및 주택과 제2대지 및 주택의 가격하락액이 각 32,294,000원(＝352,233,000원－319,939,000원)과 27,720,000원(＝298,842,000원－271,122,000원)에 이름이 계산상 명백하다.

However, even if a residential building is built, it is difficult to avoid sunshine under the current urban structure, and as such, as long as the sunshine between neighbors is inevitable, it is difficult to recognize the amount of damages for Defendant 1 to compensate for all of the prices of the 1 and 2 sites caused by the building of this case or the building of this case and the building of this case, and if the building of this case is built 0 or more stories, it is difficult to view that the number of sunlight sunshine of the building of this case exceeds the acceptable limit for 1 and 2 stories if the building of this case can be seen as the building of this case and the building of this case is constructed 2 or more stories according to the building of this case, the building of this case and the building of this case are built 1 and 3 stories, the building of this case can be seen as the building of this case, the building of this case and the building of this case which are built 1 and 2 stories, and the building of this case can be seen as changing in the building of this case to the extent of 1 and 3 stories.

B. As to Defendant 2

As determined earlier, the plaintiff and the selected party 3 cannot be deemed to have received sunshine interruption due to the building of this case. Thus, the plaintiff and the selected party 3's claim against the defendant 2 is without merit without merit, and on the other hand, the building of this case is not in violation of the regulations on the prevention of sunshine as prescribed by the related Acts and subordinate statutes, such as the Building Act, and there is no evidence to acknowledge that the building of this case was conspired with the defendant 1 or that there was intention or negligence with the defendant 2 in the first site and housing building of this case and the second site and the building of this case, and there is no evidence to recognize that the building of this case was in contravention of the regulations on the prevention of sunshine as prescribed by the related Acts and subordinate statutes, such as the Building Act, and there is no reason to believe that the defendant 2 conspired with the defendant 1 or supervised the construction of this case at the request of the defendant 1. Thus, the plaintiff 2 cannot be deemed to bear liability for damages

B. Determination on the assertion of property damage caused by infringement of the view right

In general, the view is subject to legal protection if it is objectively recognized that the owner of a certain piece of land or a building has an aesthetic value and has a view and a pleasant and pleasant environment, etc. that he/she had enjoyed from before, and has value as a single living benefit (see, e.g., Supreme Court Decision 98Da47528, Jul. 27, 199).

However, even if examining all evidence submitted by the Plaintiff, it is insufficient to recognize that the Plaintiff and the designated parties resided in the housing Nos. 1, 2, and 3 and have an objective right to view that they have value as above, and thus, this part of the assertion by the Plaintiff and the designated parties is not acceptable.

3. Part of the grounds for the judgment of the court of first instance (the part concerning the claim for materials).

A. The plaintiff's assertion

In the construction process of this case, the plaintiff and the designated parties suffered mental distress due to rupture damage, damage caused by scattering of concrete and stone, and infringement of the right to sunshine and view as seen earlier, as well as other noise, dust, and vibration generated in the construction process. As to the mental distress inflicted on the plaintiff and the designated parties, the defendant 1, the contractor, and the defendant 2, who prepared the design drawings of the building of this case and supervised the construction of this case, and the defendant Gangseo-gu, who are obligated to manage and supervise the construction of this case, is obligated to do so in money or consolation money (specific amount of consolation money is the plaintiff 4,00,000, 27,800,000, 14,000, 44,000, 340,000, 340,000, and 100 won).

B. Determination as to the claim of consolation money due to the interruption of sunshine by the Appointors 2 and 4 against Defendant 1

As determined earlier, in the case of 2 and 4 of the instant building, it is obvious in light of the common sense and the empirical rule that the psychological and mental effect of sunlight that exceeds the tolerance limit has been suffered, and it shall be deemed that the mental damage has occurred to the designated parties 2 and 4 due to the aggravation of their living environment due to the above sunshine interruption. As such, Defendant 1 has the obligation to pay for it in money. In light of the facts and overall circumstances acknowledged earlier, it is reasonable to determine the amount of consolation money to be paid to the designated parties 2 and 4 as KRW 3,00,000 each, and KRW 2,00,000,000.

C. Determination as to the remaining claim of consolation money by the plaintiff and the designated parties

As determined earlier, it cannot be recognized that there was property damage as alleged by the Plaintiff and the Appointor due to the infringement of the right of sunshine (excluding the first site, housing, and the second site and housing), and the infringement of the right of view on the land and on each of the above ground owned by the Appointor as stated in the judgment below. In addition, even according to all evidence submitted by the Plaintiff, it is not sufficient to recognize that the Plaintiff and the Appointor suffered mental damage because the noise, dust, vibration, etc. generated from the instant construction exceeded the generally accepted limit under the generally accepted social norms, and there is no other evidence to acknowledge it. Accordingly, this part of consolation money claims by the Plaintiff and the Appointor cannot be accepted.

4. Conclusion

Therefore, Defendant 1 is obligated to pay 23,000,000 won in total to 23,000,000 won (property damages of KRW 20,000,000,000 for property damages of KRW 3,000,00 for consolation money) to 2 site and housing owners 4,000 (property damages of KRW 8,000,000 for consolation money of KRW 2,000 for property damages of KRW 2,000 for consolation money) and damages for delay from December 4, 202 to 200,000 for each of the above amounts after the completion of the construction of the building of this case, as claimed by the Plaintiff, from February 14, 2002 to February 14, 2008, as determined by the Civil Act, to pay damages for delay from the next day of each lawsuit to 205% of the annual interest rate of KRW 5,000 for each of the above amounts.

Therefore, the plaintiff's claim against the defendant 1 is accepted only within the extent of the above recognition, and the plaintiff's remaining claim against the defendant 1 and the plaintiff's claim against the defendant 2 and the defendant Gangseo-gu shall be dismissed as it is without merit. Since the part against the plaintiff 1 among the judgment of the court of first instance against the defendant 1 is partially different from this conclusion, the judgment of the court of first instance is partially revoked and the defendant 1 is ordered to pay the same amount as the above recognition. The plaintiff's remaining appeal against the defendant 1 and the appeal against the defendant 2 and the defendant Gangseo-gu against the defendant are dismissed as it is without merit. It is so decided as per Disposition

【Selection’s List and List of Personal Data Changes】

Judges Choi Jae-in (Presiding Judge) Kim Dong-dong,

(1) On November 7, 2007, the fact-finding reply of the first instance trial appraiser was written in KRW 329,653,000, but this seems to be the result of erroneous calculation of the price of the building in KRW 30,739,00, not in KRW 9,168,000, not in the price of the building but in KRW 30,739,00.