[1] Whether living benefits, such as sunshine, are naturally inherent in the ownership of the land (negative), and whether the owner of the land can claim damages in a case where the residential benefits of the building to be newly constructed on the land of the present site would be infringed on by the building newly constructed on the land of the present site (negative)

[2] The case holding that even if the value of a building to be newly built on a Bridge land is likely to decline due to the infringement of living benefits, such as sunshine, etc. by a newly constructed building in a neighboring land, it cannot be concluded that there exists a violation of the right to use the land, which is the site, unless the new building violates the ordinary method of use in the neighboring land, unless it violates the ordinary method of use in the adjacent land

[1] Article 1, view, privacy protection, etc. is an element of the legal protection value related to the residential environment in the land or building, and is usually recognized as the residential interest of the relevant resident. A mere owner of the relevant real estate shall not be a person who is directly infringed upon the living benefits such as sunshine, etc., aside from seeking damages for the reason that the right to use and profit from the pertinent real estate has been infringed due to the aggravation of the residential environment in the pertinent real estate, and even in a case where claiming damages for the reason that the right to use and profit from the pertinent real estate has been infringed, an unlawful infringement on the interests of the specific residential life in the pertinent real estate should naturally exist. Thus, regardless of the status of the use of the land, the benefits such as sunshine, view, and privacy protection are not naturally inherent in the ownership of the pertinent land, but rather belongs to the contents of the right to benefit from land use based on the ownership of the landowner, and on the premise that the pertinent land is used as a residence, the damages subject to compensation for damages, which are actually caused by any unlawful act.

[2] The case holding that even if the value of a building to be newly built on a Bridge land is likely to decline due to the infringement of living benefits, such as sunshine, etc. by a newly constructed building in a neighboring land, it cannot be concluded that there exists a violation of the right to use the land, which is a site, unless the new building violates the ordinary method of use in the neighboring land, unless it violates the ordinary method of use in the adjacent land

[1] Articles 217 and 750 of the Civil Act / [2] Articles 217 and 750 of the Civil Act

Park Dong-dong (Law Firm Gyeong & Yang, Attorneys Yellow-ho et al., Counsel for the plaintiff-appellant)

The target corporation and one other (Law Firm Namsan, Attorneys Hah Ho-ho et al., Counsel for the plaintiff-appellant)

July 20, 2004

1. The plaintiff's claims against the defendants are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendants shall pay to each plaintiff 150,000,000 won with 5% interest per annum from December 1, 200 to the service date of a copy of the complaint of this case, and 25% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or are acknowledged by Gap evidence 1-1 to 6, Gap evidence 10-1 to 10-6, Gap evidence 13-1 to 17-19, Gap evidence 20-6 to Gap evidence 23-2, Eul evidence 1 through 23-5, the result of the on-site inspection by this court, the result of the appraiser's appraisal by the appraiser's handout and the whole purport of the pleadings.

A. On July 6, 2000, the Plaintiff is the owner of Seocho-gu Seoul Metropolitan Government 1685-10 square meters and 545.7 square meters (hereinafter “the instant land”), and obtained a building permit from the head of Seocho-gu Seoul Metropolitan Government to construct Class II neighborhood living facilities and business facilities on the said land in size of 2,61.76 square meters. On September 16, 2002, the Plaintiff obtained a building permit from the head of Seocho-gu Seoul Metropolitan Government 3, 8, 2,870 square meters of underground floors, 6, 2,361.76 square meters, and completed the construction at the time of closing the argument of the instant case.

B. The defendant corporation subject to construction is the owner of the above 1685-3 large 15,397.5 square meters and the above 1685-5 large 7,316.1 square meters and the above 168-5-5 large 7,316.1 square meters (hereinafter referred to as "the adjoining land of this case") on the above land from the Mayor of Seoul Special Metropolitan City on February 23, 2000 after obtaining a construction permit for the construction of the above 6th underground floors, 24th (A, Ddong), 37th (B, Cdong), and 275,908.70 square meters of total floor area to newly construct multi-family housing, sales, business, and sports facilities on November 11, 200 and completed the construction permit for the new construction of the above 16th, 200, 27, 27, 275, 27, 37, 27, 27, 27, and 34.

C. The adjoining land of this case was originally owned by the nonparty Pungung Construction Industry Co., Ltd., and its use under the former Urban Planning Act (amended by Act No. 6655 of Feb. 4, 2002, the current National Land Planning and Utilization Act) was a residential area, but was used as a site for Sam Pung department stores and their annexed parking lots, but there was a change in the specific use area to the commercial area on May 29, 196.

D. The instant land was designated as a general residential area under the Urban Planning Act, and was located between the neighboring land of this case and the instant land of this case in the direction of 74∑ South and South (i.e., the instant land was located in the southwest of the instant land) and the instant land of this case prior to the construction of the instant Akystar. Accordingly, at the time, the instant land obtained sunlight for eight hours from the date of 08:0 to 16:00 on the same day.

E. After the completion of all of the construction of Hanll Building and the new construction of Agystar, the instant Hanll Building affected by the Agystar from 09:0 to 15:00 on the same day, is divided into three parts on the basis of the columns in the instant one building; hereinafter the same shall apply) continuously for at least two hours to 24 minutes and at least four hours and six minutes at the same time on the same day. From 08:00 to 16:00 on the same day, the physical part of the instant one building ought to be divided into three parts on the basis of the columns in the instant one building; hereinafter the same shall apply); and the physical part on the part of the building at least three hours to 24 minutes during the instant five hours and six minutes during the instant five hours; and 30% to 72% of the view (the physical part on the outside part of the windows in the instant one building ought to be calculated from the outer part of the building at the same time to the extent possible from the third level of the building.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Plaintiff’s living benefits, such as sunshine, etc., are inherent in the ownership of the land, and should be protected in the event that the building is scheduled to be newly constructed even if there is no building on the land. As a result, the Plaintiff violated the living benefits, such as sunshine, view, and privacy protection related to the land of this case due to the construction of the Acroone, and the use value of the land of this case was the most important time when the land was used as the site of neighborhood living facilities and high-class studio facilities. In the event that the construction of the land of this case is to build neighborhood living facilities and high-class studio facilities on the land of this case due to the construction of the Acroone, the decline in the value of the building was inevitable due to the infringement on the living benefits such as sunshine, view, and privacy protection of the land of this case. Accordingly, the value of the land of this case was reduced for the use of the land of this case as the site of neighborhood living facilities and business facilities, which are the land of this case.

(b) Markets:

(1) The instant land had a sufficient sunshine as its original site. Since the construction of the instant Arabic, a substantial amount of sunshine decreased after the instant sunshine was newly built, and the instant land and the instant site of the Acstar adjoining each other, and thus, the residential environment, such as sunshine, etc. in the instant land would have an impact on the instant land when constructing a new building on the instant land, such as sunshine, etc. in the instant building would have an impact on the Acstar; the Plaintiff did not construct a neighborhood living facilities and high-class room facilities on the instant land; the Plaintiff constructed a new residential facility and a business facility, without constructing a neighborhood living facility and a high-class room facility on the instant land; and the fact that the instant Ac Star newly built each of the instant land was recognized earlier. Furthermore, it is deemed that there was damages caused by the Plaintiff’s infringement of land ownership, such as damage caused by the Plaintiff’s assertion and the

(2) The part concerning infringement of living benefits, such as sunshine, related to the land of this case

Along with the fact that the right to use and benefit from the real estate has been infringed upon, the right to use and benefit from the real estate can not be deemed a person who directly infringes on the right to use and benefit from the real estate, and even in a case where the right to use and benefit from the real estate is claimed for damages on the ground that the right to use and benefit from the real estate has been infringed, the benefits such as sunshine, view, and privacy protection are not inherent in the ownership of the land as a matter of course, regardless of the current status of the use of the land, but fall under the contents of the right to use the land based on the ownership of the land.

Therefore, in order for the plaintiff to seek compensation for damages caused by the infringement of the living benefits of sunshine, etc. related to the land of this case to be justified, the land of this case is being used as a residence, and there should be illegal infringement of the residents' living benefits in the above land due to the new construction of Acroone. Therefore, there is no evidence to acknowledge this. Rather, there is no dispute between the parties that the land of this case was a site, and the plaintiff's assertion on this part is without merit without any need to further examine.

(3) The part concerning the violation of land ownership due to the violation of land use right.

In the case of constructing neighborhood living facilities and high-class room facilities on the land of this case as the plaintiff's assertion, even though it is inevitable to drop down the value of the high-class room facilities belonging to the residential purpose due to the infringement of the living benefits of sunshine by the Acroki, etc., the sunshine benefits, etc. cannot be deemed as directly related to the land as a living benefit recognized in relation to the residential life. Not only are land and housing are treated as a legally separate real estate, but also in social and economic life, there are different forms of use and profit, and even if there is no obstacle to the situation where the land is being used as the site of the building, since the construction of Acroone does not go against the ordinary method of use of the neighboring land of this case, it is difficult to conclude that the construction of Acroone infringes on the right to use the land of this case, and even if it is anticipated to drop the value of the building of this case, it does not constitute infringement of the plaintiff's right to use the land of this case, which goes beyond the tolerance limit. Thus, it cannot be concluded that there is no reason to establish a new residential environment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is all dismissed as it is without merit. It is so decided as per Disposition.

Judge Don-Han (Presiding Judge)