[1] The standard for determining the illegality in a case where damage was caused by harmful discharges generated from lawful facilities or public facilities

[2] In a case where noise and vibration has increased due to the expansion of an expressway and a neighboring farmer closed down his/her business, the case holding that the Korea Highway Corporation's liability for damages is recognized on the ground that the degree of infringement on the two money business exceeds the generally accepted level and generally accepted by social norms

[3] In the case of environmental pollution caused by a workplace, etc., whether the pertinent workplace shall compensate for the damage even if there is no cause attributable to it (affirmative)

[1] The illegality as a requisite for establishing a tort does not require the determination of the whole related acts as a whole, but must be determined individually and indirectly by each act in question. Thus, where a third party suffers damage due to harmful emission generated from a legitimate operation of a facility or provision for public use, the illegality should be separately determined. The standard for determining the degree of harm should be whether the degree of harm exceeds the limit of tolerance in the social life.

[2] In a case where noise and vibration has increased due to the expansion of an expressway and thus a neighboring farmer closed down his business, the case holding that the Korea Highway Corporation is liable to compensate for damages on the ground that the degree of infringement on the two money business exceeds the generally accepted level and generally accepted by social norms

[3] According to Articles 31(1) and 3(1), 3(3), and 4(4) of the Framework Act on Environmental Policy, in a case where any environmental pollution caused by a workplace, etc. occurs, the pertinent enterpriser shall compensate for such damage, even if there is no cause attributable to it, and the above environmental pollution includes damage to human health or the environment by noise and vibration. Thus, in the absence of any cause attributable to it, the enterpriser shall be liable to compensate for the victims’ damage,

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Article 3 subparagraphs 1, 3, and 4 of the Framework Act on Environmental Policy, Article 31 (1) of the Framework Act on Environmental Policy

[1] Supreme Court Decision 89Meu1275 delivered on July 23, 1991 (Gong1991, 2211), Supreme Court Decision 98Da47528 delivered on July 27, 199 (Gong199Ha, 1755)

Plaintiff 1 and two others (Law Firm Barun Law Office, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Aju General Law Firm, Attorneys Effective-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na36155 delivered on August 25, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the lower judgment, the lower court determined that it was difficult for the Plaintiffs to jointly engage in two-lanes raising approximately 1,60 pigs (180 mare, 1,420 mare, and other 1,60 mares) with the trade name of the law farm as to the fact relevance of the instant case, since it was difficult for the Plaintiffs to take measures to prevent noise and vibration from occurring on May 1, 1993 on the road surface because it was not possible for the Defendant to take measures to increase their noise and vibration from May 1 to January 1, 1996, on the ground that there was an increase in the size of the above 1,98m2, which would have been caused by the increase in the size of the above 5m2 road, and that the Defendant still carried out measures to increase the size of the above 4m2 road construction to prevent the noise and vibration from occurring on behalf of the Minister of Construction and Transportation from spreading the above 5m2 road due to the increase in the size of the above 5m2 road.

2. However, the judgment of the court below that the defendant's liability for damages of this case cannot be recognized is not acceptable for the following reasons.

A. First of all, illegality as a requisite for establishing a tort is not to be determined by the whole related acts, but to be determined individually and alternatively by each act in question. Thus, even in a case where a facility is legitimately operated or provided for public use, if a third party suffers a loss due to harmful emission, its illegality should be determined separately. The criteria for determining such a case should be whether the degree of harm exceeds the limit of tolerance that is ordinarily accepted in the social life (see, e.g., Supreme Court Decisions 89Meu1275, Jul. 23, 1991; 98Da47528, Jul. 27, 199).

Even according to the judgment of the court below, since the expansion of the above expressway occupied and managed by the defendant and the increase in the traffic volume and speed of the vehicle after the completion of construction, noise and vibration occurred to the extent that the plaintiffs should close down the above bus business. Thus, the nature and contents of the damage suffered by the plaintiffs, the degree or scale of the damage, the noise level and generally permissible noise level after the construction completion or after the construction completion of the above expressway, the defendant did not take any measures to reduce the damage suffered by the plaintiffs before the above expressway expansion work, in order to prevent the damage caused by the plaintiffs before the above expressway expansion work, in full view of various circumstances, such as the location of the above highway extension work and the road closeness, and the general land use relation of the surrounding party, the infringement of the plaintiffs' raising money business caused by noise caused by the above expressway expansion work and vehicle traffic exceeds the generally accepted limit, and therefore, the use of the expressway or the public interest of the vehicle itself, and even if the noise and vibration caused by the vehicle traffic in the expressway is inevitable to the extent that the damages suffered by the plaintiffs cannot be exempted from the above noise limit.

B. Next, according to Articles 31(1) and 3 subparag. 1, 3, 3, and 4 of the Framework Act on Environmental Policy, in the event of environmental damage caused by a workplace, etc., the pertinent business operator shall compensate for such damage even if there is no cause attributable to the business operator, and the above environmental pollution includes damage to human health or the environment by noise and vibration. Thus, even if there is no cause attributable to the Plaintiffs, the Defendant shall be liable to compensate for the damage, barring special circumstances.

C. Nevertheless, the judgment of the court below which did not recognize the defendant's tort liability for damages caused by the defendant's illegal act on the ground that the defendant's illegal act and the reason attributable to the damage of the plaintiffs in this case cannot be recognized, is erroneous in the misapprehension of legal principles as to the establishment of liability for damages caused by noise and vibration exceeding the limit of tolerance in roads, etc., and it is clear that

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)