[1] The meaning of “the distance from the boundary to the part protruding away from the boundary” under Article 242(1) of the Civil Act (=the distance from the boundary to the part protruding out of the building)

[2] The meaning of "the commencement of construction" and "the completion of a building" under Article 242 (2) of the Civil Code

[1] Under Article 242(1) of the Civil Act, the provision that, while constructing a building in question, there shall be no special customs, a distance not less than a half-meter radius from the boundary of the building is intended to seek the air circulation, lighting, or prevention of disasters of each building in cases of constructing a building on adjoining sites. As such, the term “half meters from the boundary” refers to the distance from the boundary to the part protruding out of the building.

[2] Even if the distance under Article 242(1) of the Civil Act is violated, only one year has passed since the commencement of the construction work, or one year has passed since the completion of the construction work, can only claim damages for the alteration or removal of the building after the completion of the construction work (Article 242(2)). Here, “the commencement of the construction” refers to the situation in which the owner of the adjoining land can objectively recognize that the construction work has commenced, and “the completion of the construction” refers to the construction that has been constructed to the extent that it can be recognized as an independent building under social norms, and it does not go through legitimate procedures such as building permission, reporting on the commencement of construction,

[1] Article 242 (1) of the Civil Code / [2] Article 242 (2) of the Civil Code

Plaintiff

Won Buddhist District Court Decision 2005Na14888 delivered on August 2, 200

Seoul Central District Court Decision 2010Na27723 Decided November 26, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

In the construction of a building under Article 242(1) of the Civil Act, the purport of the provision that a distance not less than half from the boundary shall be left, unless there is any special custom, is to construct a building on the adjoining site is to seek the ventilation of each building, lighting, or prevention of disasters. Therefore, the term “half meters from the boundary” refers to the distance from the boundary to the part protruding out of the building.

Unlike this, the court below erred in finding that the above separation distance means the distance from the boundary to the outer wall of the building.

However, even if the above separation distance has been violated, only one year after the commencement of the construction works, or after the completion of the construction works, can only file a claim for the alteration or removal of the building (Article 242(2) of the Civil Act). Here, “the commencement of construction” refers to the situation where the owner of the neighboring land can recognize that the construction works have commenced objectively, and “the completion of the building” refers to the construction that has been built to the extent that it can be recognized as an independent building under social norms. Whether it has gone through lawful procedures such as building permission, reporting on the commencement of construction works, or approval for use, etc. under the construction-related statutes

However, since it is apparent in the record that the building of this case owned by the defendant was completed already, it is no longer possible for the plaintiff to seek alteration or removal of the part against which the defendant violated the separation distance among the building of this case.

Furthermore, the court below did not deem that the Defendant’s violation of the separation distance alone did not cause any damage to the Plaintiff, and there is no evidence that the Plaintiff’s building owned by the Plaintiff was contaminated by rainwater or decreased to the extent that the amount of sunshine was exceeded the tolerance limit on the building owned by the Plaintiff, and rather, it is acceptable in light of the records, that the court below determined that the Defendant installed the facilities on the roof of the building owned by the Plaintiff under the Plaintiff’s permission, and therefore, the lower court’s error above did not affect the conclusion of the judgment. The allegation in the grounds of appeal is unacceptable.

2. As to the third ground for appeal

In light of the records, the court below's decision is acceptable and there is no violation of the rules of evidence against the rules of evidence, such as alleged in the grounds for appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)