[1] The scope of passive damage in a case where noise and vibration caused by expressway expansion works and vehicle traffic makes it impossible to operate a two-way business any longer at the previous place of business

[2] The case reversing the judgment of the court below which included the period from the day after the closing day of the contract in addition to the period from the day after the day after the closing day of the contract of the court below, in calculating the scope of passive damages where the previous place of business was no longer able to engage in the mass raising business due to noise and vibration arising from the expressway expansion construction and vehicle traffic

[1] If noise and vibration from expressway expansion works and vehicle traffic makes it impossible to engage in a two-way business any longer at the previous place of business, the passive damages suffered by the two-way business operators are the income that would be lost due to the closure or transfer of the two-way business at that place. The damages period is the period calculated by adding the ordinary period of time required to secure the substitute for the two-way business and the two-way business facilities to the extent similar to the above two-way business from the time the noise and vibration caused by vehicle traffic is impossible to operate the two-way normal business due to noise and vibration.

[2] The case reversing the judgment of the court below which included the period from the day after the closing day of the contract in addition to the period required for the construction of facilities and creation of the condition of both money similar to the previous heads in calculating the scope of passive damages where noise and vibration from the expressway expansion construction and vehicle traffic becomes no longer available in the previous place of business in the previous place of business

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393 and 763 of the Civil Act

Plaintiff 1 and two others (Law Firm Barun Law, Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Shin-hwan, Counsel for defendant)

Supreme Court Decision 99Da55434 delivered on February 9, 2001

Seoul High Court Decision 2001Na13329 delivered on September 11, 2001

The part of the lower judgment against the Defendant regarding passive damages is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeal and the Defendant’s remaining appeals are dismissed.

1. The judgment of the court below

In full view of his adopted evidence, the court below acknowledged the fact that the Defendant’s management and possession of the Young-dong Highway closed the business on May 31, 1996, on the basis of such factual basis, on the ground of the fact-finding, that such infringement on the Plaintiffs’ money business caused by noise from the extension of the expressway construction work and the noise from around January 1, 1995 to around January 1, 1996, exceeds the generally accepted level, and thereby, caused damages to the Plaintiffs due to the closure of the business due to the occurrence of noise and vibration. The court below determined that the Defendant was liable to compensate the Plaintiffs for damages.

Furthermore, with respect to the scope of liability for damages, the lower court recognized active damages and mental damages, which are costs incurred in returning the appraised value of various relevant facilities at the time of the closure of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of the establishment of

On the other hand, with regard to passive damages, the court below, based on its adopted evidence, found that the plaintiffs were unable to move the amount of money to another area within the Crossing-gun in which the heads of money were located for the relocation of the amount of money, but the Crossing-gun's authorities did not object to residents because the amount of money was a facility that gives a sense of aversion by malodor, etc., and held that each authority of the Hongcheon-gun, Sejong-gun, Won-si, and Young-si was unable to move the amount of money to each area for the same reason, and that it was impossible to move the amount of money to each area for the same reason, and that the fact that the transfer was not possible until the date of closing the argument in the court below, and that the construction of facilities and the creation of the amount of money was 19 months for the degree similar to the two heads, and that the plaintiffs' failure to move the amount of money by the date of closing the argument in the court below was not absolutely impossible to move the amount of money until the date of closing the argument in the court below.

2. Judgment on the plaintiffs' grounds of appeal

The fact-finding and judgment of the court below that the transfer of the two kinds of money is not impossible by comparison with the evidence in the records are just and acceptable, and there is no error of law which misleads the facts such as failing to exhaust all necessary deliberations or violating the rules of evidence.

In addition, the judgment of the court below on the premise that the transfer of the two moneys is not impossible is just and its judgment is not erroneous in the misapprehension of legal principles as to the liability for damages arising from the possibility of transfer of the business.

The Supreme Court Decision, which was delivered during the grounds of appeal, cannot be justified to invoke the instant case in a different manner.

The plaintiffs' grounds of appeal are not accepted.

3. Judgment on the Defendant’s ground of appeal

A. The fact-finding and determination by the court below on the annual estimated business losses are just and acceptable, and there is no error of law which misleads the facts that the court did not exhaust all necessary deliberations or violated the rules of evidence.

B. In addition, the court below recognized the defendant's liability for damages based on its factual basis by dividing the scope of the liability for damages into active damages, passive damages, and mental damages. The court below did not order the payment of compensation for suspension of work or closure of business under the former Enforcement Rule of the Special Act on Special Cases Concerning the Compensation for Loss of Public Works (repealed by Ordinance No. 344 of December 31, 2002, hereinafter referred to as the "Enforcement Rule of the former Special Act"). Thus, even if the court below ordered active damages together with such active damages, it did not err by misapprehending the legal principles on the Enforcement Rule of the Special Act on Special Cases or on the scope of the liability for damages.

The defendant's allegation in this part of the grounds for appeal is rejected.

C. The Plaintiffs’ passive damages in this case are noise and vibration caused by the vehicle traffic of the instant road, which resulted in the Plaintiffs’ loss due to the Plaintiffs’ closure or transfer of the said area. The damages period is the period calculated by adding the normal period of time required to secure the substitute for the instant fish farms and the facilities and the facilities needed to secure the two pigs with normal efforts from the time when the noise and vibration caused by the vehicle traffic makes it impossible to conduct the normal operation of the two pigs due to the noise and vibration.

In full view of his admitted evidence, the lower court recognized the fact that the Plaintiffs had endeavored to find out the place where the two payments are to be transferred by the date of closing argument of the lower court, and found that the Plaintiffs failed to find it, and accordingly, included the period from the date after the closing day of the two payments to the date of closing argument of the lower court as requested by the Plaintiffs, in addition to the period required for the construction of facilities and creation

However, as evidence consistent with such fact-finding of the court below, there is a reply (No. 9-3, No. 9-2, and No. 9-5) to the defendant sent to determine the plaintiffs' compensation for the closure of the business in accordance with the former Enforcement Rule of the Act on Special Cases, and it is judged that it is considerably difficult for the plaintiffs to move the above two kinds of money to another area because it is not possible for the plaintiffs to move to the same area because it is not possible for the 5th head of the Si/Gun to find the relocation of the land around the 5th head of the Si/Gun or nearby the 5th head of the Si/Gun, or the Si/Gun to find the relocation of the 9th head of the 5th head of the Si/Gun, because it is difficult for the plaintiffs to find that the relocation of the 9th head of the Si/Gun and the head of the 5th head of the 5th head of the Gun to find the relocation of the 9th head of the Si/Gun to the 9th head of the Si/Gun's.

In addition, even though the plaintiffs tried to find a substitute for the transfer of the two payments, but did not find it, in this case where 5 years and 2 months (6 years and 9 months - 19 months) during the period from the date following the date on which the closure date of the two payments closed to the date on which the argument in the court below was closed, fall under the ordinary period required to secure substitutions and business facilities for the two payments in this case with normal efforts, or there is no evidence to deem that it was predicted or could have been predicted, it cannot be concluded that the period is included in the damage period which the plaintiffs lost due to the closure of the two payments.

Nevertheless, the court below found that the evidence alone, despite the plaintiffs' normal efforts, did not find a place where the two kinds of money was transferred until the date of closing the argument in the court below, and determined that the period until that time was included in the damage period due to the closure of the two kinds of money, was in violation of the rules of evidence, or erred in the misapprehension of legal principles as to the scope of compensation for damages. Thus, the defendant's ground of appeal pointing this out is justified.

4. Conclusion

Therefore, in order to further examine and determine the scope of passive damage, the part against the defendant among the passive damage of the judgment below shall be reversed, and that part of the case shall be remanded to the Seoul High Court, and the plaintiffs' appeal and the defendant's remaining appeal shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)