[1] Criteria for determining whether the infringement of the right to sunlight exceeded the tolerance level under the social norms, and the scope of tolerance limit in a case where the infringement of the right to sunlight only exceeds the tolerance level

[2] The case holding that the limit of the number of stories permitted for the construction of newly constructed apartment units on the 22th ground level to the 20th floor level in the areas adjacent to public elementary schools and kindergartens is limited by the construction of high-rise apartment units on the 22th floor scale due to the newly constructed apartment units on the 20th floor level in the above construction

[3] Whether the circumstance of complying with the construction-related laws constitutes grounds for exemption from liability due to the infringement of the right to enjoy sunshine within the scope of the limit of admission or the infringement of the right to enjoy sunshine (negative)

[1] Whether the infringement of the right to sunshine goes beyond the generally accepted level shall be determined by comprehensively taking into account all the circumstances, such as nature and degree of damage, the public nature and social value of the damaged interest, the purpose of the damaged building, the measures to prevent damage or the possibility of avoiding damage, public law regulation and authorization and permission relations, regional characteristics, the ex post facto relationship of land use, the parties' negotiations, the degree of obstruction of sunshine alone, and the risks of corporate bankruptcy. On the other hand, if the criteria for the limit of tolerance are presented only to the extent of obstruction of sunlight, in light of the relevant provisions of the Building Act, if the sunshine hours are secured for at least two consecutive hours between 9:0 hours and 15, or if it is secured for at least four hours during the eight hours between 8:0 and 16 hours in total, it shall be acceptable, and if it does not fall under any of the two, it shall exceed the limit of tolerance.

[2] The case holding that the degree of infringement of the right to sunshine on schools, etc. is expected to exceed the limit of admission, and that the number of the newly constructed apartment units permitted for construction on the said newly constructed apartment units is limited to 20 floors, where the high-rise apartment construction on the 22th floor scale above ground level is in progress in the areas adjacent to public elementary schools and kindergartens

[3] The compliance with the construction-related laws can only be the minimum standard to determine whether the right to enjoy sunshine is acceptable or the degree of restriction on the number of floors is limited, and it cannot be deemed that the infringement of the right to enjoy sunshine within the scope of the acceptable limit or that the liability due to the infringement of the right to enjoy sunshine is exempted.

[1] Article 2(1) of the Civil Act / [2] Articles 2(1) and 214 of the Civil Act / [3] Articles 2(1) and 750 of the Civil Act

[1] [3] Supreme Court Decision 98Da5697 delivered on May 16, 2000 (Gong2000Ha, 1419) Supreme Court Decision 2003Da64602 Delivered on September 13, 2004 (Gong2004Ha, 1661) Supreme Court Decision 2004Da24212 Delivered on September 13, 2004

Gwangju Metropolitan City (Attorney Yang-py et al., Counsel for the defendant-appellant)

Large shareholder Selection Co., Ltd. (Attorney In-bok et al., Counsel for defendant-appellant)

October 5, 2004

1. The defendant shall not construct more than 20 floors among the new construction works of the first underground floor and the second apartment of 22 stories above ground that are newly constructed on each land listed in the attached list.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be seven minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

The defendant shall not execute construction works exceeding 15 floors from among new construction works for apartments under paragraph (1) of this Article.

1. Basic facts

A. The plaintiff is a local government taking charge of elementary education in Gwangju Metropolitan City, and is the owner of the building and site in Gwangju Fridong Elementary School (hereinafter referred to as the "school in this case"). On June 17, 2003, the defendant obtained approval from the head of the Nam-gu Seoul Metropolitan City head of the Gu in Seoul Metropolitan City for the construction plan for the construction of underground floors 1 and 256 can be the lender apartment (hereinafter referred to as the "multi-unit apartment in this case"), and currently the construction of the new apartment in this case is currently being implemented.

B. The school of this case is located in the same part of the school, where the main building faces the apartment of this case, and the dong Teacher and the playground of the school of this case are located in the same part of the school, and in the same part of the school of this case, the 22th floor (Provided, That one of them is the 14th floor), the height of the roof is about 59.5m, the floor area ratio is about 29.5m, the floor area ratio is 17.49%, and the building-to-land ratio is 17.49m between the school of this case and the apartment of this case. The apartment of this case is located in the south side of the school of this case.

C. Each unit of the apartment of this case is in progress by the Corporation up to 13 floors as of September 20, 204, and the sale of the apartment of this case reaches 87% as of September 14, 2004.

D. If the apartment of this case is completed on the 15th, 18th, 20 and scheduled 22th, the day of the school of this case (the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day (the day of day of day of day of day of the day of the day of day of the day of day of the day of day of the day of the day of the day when the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of the day of day

(1) Main building

Annual sunshine rate of 100% (in the case of all floors):

(b) A convenience teacher;

In the case of 15 floors: 9 hours of sunshine and 100% of sunshine;

In the case of 18th floor: 9 hours of sunshine, 100% of sunshine

In the case of 20 floors: Daily hour of 8 hours (8 through 13, 15, 16: 16: 96.6%

In the case of 22 floors: 6 hours of sunshine (8, 9, 11, 12, 15, 16: 1) and 91.4%

(c) Annexed kindergartens;

In the case of the 15th floor: 6 hours of sunlight (8 to 12, 16 a.m.) and 66.7%

In the case of 18 floors: 3 hours of sunshine (8, 9, 16 cc) and 3.3% of sunshine;

In the case of 20 floors: 3 hours of sunshine (8, 9, 16 cc) and 34.3% of sunshine

In the case of 22 floors: 3 hours of sunshine (8, 9, 16 cc) and 3.3% of sunshine

(4) Athletic fields;

In the case of 15 floors: the hours of sunlight 7 hours (8, 11 to 16 cc) and the rate of sunlight 95.1%

In the case of the 18th floor: 4 hours of sunlight (8, 14, 15, 16 a.m.) and 86.1% of sunshine.

In the case of 20 floors: 4 hours of sunshine (8, 14, 15, 16: 16: 77% of sunshine

In the case of 22 floors: 4 hours of sunlight (8, 14, 15, 16: 16: 73.4% of the daylight.

(5) The low-school play hall;

In the case of the 15th floor: the hours of sunshine (8 to 14, 16 a.m.) and the rate of sunshine 96.7%

In the case of 18th floor: 5 hours of sunshine (8, 9, 11, 12, 16 City/Do), 82.4% of sunshine

In the case of 20 floors: 3 hours of sunshine (8, 9, 16 cc) and 58% of sunshine;

In the case of 22 floors: 3 hours of sunshine (8, 9, 16 cc) and 43.3% of sunshine

(6) Kindergarten Easium;

In the case of 15 floors: one hour of sunshine (8 cc) and 22.7% of sunshine.

In the case of 18th floor: one hour of sunshine (8 cc) and 22.2% of sunshine.

In the case of 20 floors: one hour of sunshine (8 cc) and 25.6% of the sunshine rate;

In the case of 22 floors: Daily 1 hour (8 cc) and 24.4%

[Ground for Recognition: Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 6, 9, and 10 (including each number), the result of the on-site inspection by this court, the result of the appraisal of the capacity of appraiser, the whole purport of the pleading]

2. The parties' assertion

A. The plaintiff's assertion

If the apartment building of this case is constructed in excess of 15 floors, the right to sunshine of elementary school students and kindergarten students who study in the school of this case shall be violated to the extent that it exceeds the tolerance limit under the social norms. Thus, in order to prevent the infringement in advance, the defendant shall not construct the apartment building exceeding 15 floors among the apartment buildings of this case scheduled to be newly built

B. Defendant’s assertion

The instant construction project is a legitimate exercise of ownership by obtaining a building permit lawfully, and the student's right to enjoy sunshine is not violated, and even if it is violated, it is limited to the extent of social norms even if it is infringed, and if it is constructed in a number less than the permitted number of floors, the Defendant's assertion is unfair.

3. Determination

A. Determination on infringement of right to enjoy sunshine

(1) The plaintiff, who is the owner of the building and site of the school of this case and is a local government obligated to manage all matters concerning the education of public elementary schools and kindergartens annexed thereto, can seek interference or prevention based on ownership in the case of new construction of the apartment of this case where it is recognized that the infringement of the right to sunshine due to the construction of the apartment of this case goes beyond the generally accepted level (the defendant's right to enjoy sunshine is a preliminary right to the living recognized as currently residing person, and therefore, it is premised on the use or residence of the real estate at present. Thus, the plaintiff's right to enjoy sunshine in this case is not a claim for consolation money due to the infringement of the right to enjoy sunshine of elementary schools and kindergartens ex officio. However, in this case where the plaintiff deals with the damage of the right to enjoy sunshine of elementary schools and kindergartens, the concept of residence can not be established at least from the 8th day to the 6th day of the building of this case, the plaintiff's assertion is without merit, considering the nature of the company's right to enjoy sunshine to the extent that it goes beyond generally accepted norms.

(2) According to the criteria of the acceptance limit based on the above, in a case where the building of this case is constructed in accordance with the plan, ① the degree of damage to the right to sunlight in the case of the main building, the sports ground, and the building of the same convenience building is within the acceptance limit, ② the limit to the 15th floor in the case of the annexed kindergarten is within the acceptance limit, or the limit to the 18th, the 20th, or the 22th floor in the case of the annexed kindergarten. ③ If the limit is to the 15th or the 18th floor in the case of the golf club, the limit is to the 15th or the 20th floor, and the limit is to the 15th or the 22th floor in all the case of the kindergarten playground.

(3) However, the determination of the limit of the limit of the right to enjoy sunshine based on the above hours of sunshine is the minimum standard, and in particular, unlike the case of a claim for damages arising after the completion of an apartment building, in the case of seeking the suspension of construction itself as in the case of this case, the exercise of an individual’s property right guaranteed by the Constitution shall be subject to a serious restriction. Considering the overall reasons stated on the basis of the determination of the limit of the right to enjoy sunshine infringement as above, the degree of the infringement of the right to enjoy sunlight of this case’s apartment building shall be strictly judged.

(4) From among the facilities of the instant school, if deemed as the basis for the kindergarten and the kindergarten playground, the degree of damage to sunshine is serious; ② Even if the kindergarten accounts for 3.2% of the entire area of the instant school as alleged by the Defendant, among the facilities of the instant school, the facilities related to elementary school and kindergarten from among those of the instant school shall be strictly distinguished from the users of the right to sunshine at least; ③ the instant school shall have the damage to the right to sunshine in its entire area; ③ the instant school shall continue to grow over the entire area; ③ the instant school shall have the light more important for the formation of the strong height; the facilities mainly used by the young children and elementary school students, the public nature and social value of which are larger; ④ the construction of the instant apartment complex, recognizing the existence of the instant school already constructed, and the installation of the instant apartment complex, which is a general premise that the instant committee may be deemed to have been in violation of social norms, and thus, may not be deemed to have any damage to the Defendant, even if the construction of the instant apartment complex may not be deemed to have any specific purpose to have any specific consultation with the Defendant 15.

(5) Furthermore, with respect to the scope of restriction on the number of apartment buildings of this case ordered the suspension of construction, it is relatively insignificant in cases where the degree of infringement on the right to sunshine due to sunshine hours is limited to not more than 20 stories, and the permission of the construction is restricted to not more than 20 stories, ② In the same season, sports activities are not frequent compared to the summer, and a considerable period of time is included after the wintering day. ③ The apartment of this case has already been sold in lots 87%, and the apartment of this case has already been completed, and the number of stories can be restricted to the extent that there is no infringement on the right to sunshine, and ④ as mentioned above, it is desirable to apply more strict requirements than in cases where the construction is suspended before the completion of the apartment construction of this case, as well as in cases where the construction is claimed for damages due to infringement on the right to sunshine, ⑤ In cases of kindergartens, it is desirable to prevent the damage of the right to sunshine in the case of kindergartens, but the whole school of this case can not be permitted in the dialogue committee of this case.

B. Judgment on the defendant's other arguments

(1) The Defendant asserts that the construction of the instant apartment does not violate the construction-related laws and regulations, and thus, it cannot be deemed that the instant apartment cannot be seen as being in violation of the right to enjoy sunshine. However, even if the Defendant’s assertion is acknowledged, the observance of the construction-related laws and regulations can only be a minimum standard to determine whether the right to enjoy sunshine is acceptable or the degree of restriction on the number of floors is limited, and it cannot be deemed that the infringement of the right to enjoy sunshine falls within the scope of the limit of the admission or that the liability is exempted due to the infringement of the right to enjoy sunshine (see Supreme Court Decision 98Da56997 delivered on May 16, 200). The Defendant’s assertion is without merit.

(2) In addition, the Defendant alleged that the instant school’s low-class play is not play facilities, but de facto landscaping facilities, but rather, there is no evidence to acknowledge it. Rather, in full view of the result of the on-site inspection of the present court, in light of the purport of the oral argument, the space of the lower school class play hall is installed, the entrance is surrounded by low-class fences, and all kinds of stone for learning are installed at the center, and it is recognized that the Defendant is a facility necessary for students’ learning, such as where weather observation facilities are installed at the center. Therefore, the Defendant’s above assertion is without merit.

(3) In addition, the defendant asserts to the effect that the kindergarten play hall is an ancillary facility of a kindergarten, so it is not necessary to consider whether it infringes on sunshine separately. However, the existence of outdoor play facilities for the kindergarten students is necessary facilities regardless of winter or winter, so the defendant's above assertion is without merit.

(4) In addition, the defendant asserts that the school of this case is wrong to make a decision on the right to enjoy sunshine based on the same day, even in this case, since the school of this case has almost little users in the case of the general residential area unlike the general residential area. However, such defendant's argument also satisfies the limit of admission of the right to enjoy sunshine or the limit of the number of floors, and it does not constitute a circumstance to reject the plaintiff's claim in itself. Thus, the defendant's argument is without merit.

(5) In addition, the defendant asserts that the entire school of this case shall not be deemed to have damaged the right to enjoy sunshine since the area damaged by the right to enjoy sunshine among the schools of this case is 3.2% of the total area, and therefore, the claim of this case should be dismissed. However, as seen earlier, from the standpoint of the kindergarten students, 3.2% of the claim of this case shall be deemed to be its entire space. As such, it is sufficient that this is sufficient to determine whether the right to enjoy sunshine is infringed or whether the limit of the number of floors is limited, and it is not a circumstance to reject the plaintiff's claim. Thus, the defendant's assertion is without merit.

(6) The defendant's assertion that the plaintiff's claim cannot be maintained in light of this, since the defendant's restriction on the number of floors of the apartment complex of this case and the number of buyers may cause severe monetary or mental damage. Thus, if the plaintiff's claim cannot be maintained, the defendant's permission of construction work is restricted to 20 floors each, as acknowledged above, when the defendant's purchase of the apartment of this case is restricted to 20 floors as of September 14, 2004, the household whose sale is revoked as of September 14, 204 is merely 20 households (two households among the 21st and 22th generation units), and it is acknowledged that there is a possibility of using the apartment unit of this case's 31 generation (the problem of loss of expectation profit due to the number of floors favorable, but this can be sufficiently borne in light of the infringement of the right to sunshine of students of this case). In light of this, the defendant's assertion that the defendant's sale of the apartment of this case can not be clearly justified.

(c) Conclusion

Thus, the number of floors permitted for the construction of the apartment of this case shall be limited to 20 floors each, and the defendant shall not conduct construction exceeding this limit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant of this case is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Judges old-ro (Presiding Judge) Ma-Un Kim Jong-hee

(1) The height of each part of a building (excluding multi-household houses and dormitories; hereinafter the same shall apply) under Article 86 (Restriction on Height of Building for Sunlight, etc.) (2) of the Enforcement Decree of the Building Act, in addition to meeting the provisions of paragraph (1), shall not exceed the height prescribed by the Building Bylaws within the range not exceeding four times the horizontal distance from the wall where windows, etc. for sunlighting are installed to the boundary of neighboring site in the right angle direction, in addition to the distance between each part of a building (including a case where each part of one building faces another; hereinafter the same shall apply) under Article 53 (2) of the Enforcement Decree of the Building Act.