Korea Highway Corporation (Law Firm Lee & Lee LLC, Attorneys Lee Dong-ho, Counsel for defendant-appellant)

피고 (소송대리인 법무법인 윈앤윈 담당변호사 박정화)

January 23, 2014

1. The Plaintiff (Counterclaim Defendant) shall pay 22,608,000 won to the Defendant (Counterclaim Plaintiff) and 20% interest per annum from January 22, 2014 to the date of full payment.

2. The plaintiff (Counterclaim defendant)'s claim on the principal lawsuit is dismissed.

3. The costs of lawsuit shall be borne by all the plaintiff (Counterclaim defendant) by aggregating the principal lawsuit and counterclaim.

4. Paragraph 1 can be provisionally executed.

The main claim is to confirm that there is no obligation to pay damages for excess damages of the orchard located in the section of the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) due to noise, exhaustive, and spraying snow removal in the section of ○○ Highway - △△△△△△△ (hereinafter “Plaintiff”) of the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) to the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”) due to noise, exhaustive, and spraying snow removals ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), ( Address 7 omitted), ( Address 8 omitted), ( Address 9 omitted), ( Address 10 omitted), ( Address 12 omitted), ( Address 13 omitted), ( Address 14 omitted), and ( Address 15 omitted).

Counterclaim: Paragraph (1) of this Article.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. The Plaintiff is the managing authority of the ○ Highway, and the Defendant operates an orchard (hereinafter referred to as the “instant orchard”) in Ischeon-si ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), ( Address 7 omitted), ( Address 8 omitted), ( Address 9 omitted), ( Address 10 omitted), ( Address 11 omitted), ( Address 12 omitted), ( Address 12 omitted), ( Address 13 omitted), ( Address 14 omitted), ( Address 15 omitted), and ( Address 15 omitted).

B. The instant orchard is located south of the four-lane road at approximately 80 K-lane in the △△ branch of the ○ Highway. While the two sides are higher than the ○ Highway, the two sides are adjacent to approximately 200 meters in the shape of a little low slope, approximately 10 meters in the fourth lane of the Highway, and about 6-7 meters in the fourth lane from the end of the side, and about 6-7 meters in the width from the end of the side, and about 2-meter in the boundary of the expressway and the orchard are installed.

C. The growth and fruit of fruit trees planted in the first and second grades adjoining the expressway among the fruit trees planted in the instant orchard, compared to those planted in other places.

D. The average daily traffic volume on the section of an expressway abutting on the Defendant’s orchard is 57,00 vehicles in 208, 57,932 vehicles in 209, and 60,894 vehicles in 2010. In the event that snow is snowed on the ○ Highway, the Plaintiff performs snow removal work by spraying calcium solution (30%) and salt at the vicinity of the floor. The quantity of calcium used in the above section is 390km in 2008, 873km in 2009, 980km in 201.

E. On July 4, 2011, the Defendant filed a petition with the Central Environmental Dispute Resolution Committee for adjudication claiming damages by asserting that the noise from an expressway was obstructed by water surface due to exhaust gas and snow removal, and that the use of exhaust gas and snow removal materials incurred damage, etc. In addition, the Central Environmental Dispute Resolution Committee did not recognize damage caused by noise on November 3, 201, but rendered a ruling that the Plaintiff would pay KRW 8,844,760 to the Defendant. However, the Plaintiff dissatisfied with the said ruling and filed the instant principal suit on December 29, 201.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 3 (including paper numbers), Eul evidence 1 and 5, each of Eul evidence 2 to 4 (including paper numbers), and the result of the on-site inspection by this court

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that the defendant's claim for damages is unfair, since there is no causation between the annual use of the expressway and the use of snow removal materials and the excessive damage of the orchard of this case.

The Defendant asserts that, as a part of the claim, the Plaintiff suffered damage due to the defoliation of fruit trees and the reduction of the output of fruits due to the use of exhaust gas issued on the vehicles passing through the instant section, and the use of snow materials by the Plaintiff, sought payment of KRW 22,608,000 out of the amount of damage.

(b) Markets:

1) Occurrence of damages liability

In the case of a claim for damages due to a tort, it is common for the victim to bear the burden of proving the causal relationship between the harmful act and the damage. However, in the case of a claim for damages due to the discharge and rain of the material causing adverse effects on the fruit cultivation as in this case, it is extremely difficult for the defendant, who is an individual, to strictly prove the causal relationship between the harmful act and the damage, while it is extremely difficult for the plaintiff, a company, to investigate the cause much more easily than the defendant in technical and economic circumstances. Thus, it is sufficient to prove that a harmful material has reached the degree of damage, and it is sufficient to view that the plaintiff cannot be exempted from the liability unless it separately proves the existence of the harmful material or other damage (see Supreme Court Decision 2009Da42666 delivered on October 29, 209, etc.).

(6) According to the following circumstances, the Plaintiff’s assertion that there was no damage to the Defendant’s point of view and the point of view that there was no significant damage to the Defendant’s point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view that there was no difference between the point of view and the point of view view that there was no difference between the point of view.

2) Scope of liability for damages

As to the amount of damages that the Plaintiff is liable to compensate to the Defendant, comprehensively taking account of the overall purport of the pleadings in the statement in the Evidence Nos. 1 and 5, the Plaintiff with respect to the amount of damages that the Plaintiff is liable to compensate to the Defendant: (a) as of October 201, 201, in the fruit trees in the instant orchard, three and one peach tree among the fruit trees in the instant orchard; (b) the fact that the growth of 42 and forty-one peach tree in the fruit trees in the instant orchard was considerably low; (c) approximately one year thereafter, on October 2012, approximately one year thereafter, 7 and 26 peach tree in the fruit trees in the instant orchard; (d) the death trees and forty-two and fifty-six peach tree in the instant orchard; and (e) the damage therefrom may be acknowledged as being in the following table.

The damage rate of 20, 20, 20, 20, 20, 20, 20, 20, 20, 30, 300, 200, 382,000, 42,000 and 90,000, 20,000, 20,000, 20,000,000, 20,00,000, 24,00,000, 24,00,00,00, 20,00,00, 24,00,00, 20,00, 24,00,00,00, 20,00,00,00, 20,00,00,00,00,00,00,00,00,00,00,00,00,00,00,00.

Note 1) the damaged area

Note 2) Criteria for Calculation

Note 3) Loss Rate

Note 4) Gogs

Therefore, the Plaintiff is obligated to pay to the Defendant 22,608,000 won and damages for delay at a rate of 20% per annum from January 22, 2014 to the day of full payment, which is the day following the day of service of the application for purport of the counterclaim and modification of the cause of the claim as of January 17, 2014.

3. Conclusion

Therefore, the plaintiff's claim against the principal lawsuit is dismissed without merit, and the defendant's counterclaim is justified, and it is decided as per Disposition with the assent of all participating Justices.

Judge Upper-gu

1) Application of 24m2 per stock of trees

2) The amount of farming damage in 2011 was calculated on the basis of the Gyeonggi-do history and standard income table among the standard income analysis table for agricultural and livestock products published by the Rural Development Administration in 2011, and the amount of farming damage in 2012 was calculated on the average of the Gyeonggi-do history and standard income table among the standard income analysis table for agricultural and livestock products published by the Rural Development Administration in 201 and 2011.

3) Of the instant orchard, the sales ratio of the fruit trees produced from other fruit trees is 95%, and since the sales ratio of the fruit trees produced from the damaged trees is 5%, the damaged ratio of the damaged trees is 90% (=95%-5%).

Note 4) Gelim trees calculated losses including sublime.