20 Ba11368 Compensation (as referred to in paragraph (1)

1. A;

2. B

3. C.

4. D;

[Defendant-Appellant] Plaintiff 1 and 2 others

E Apartment Housing Reconstruction Project Association

Attorney Kim Jae-young, Counsel for the plaintiff-appellant-appellant

September 2020

November 13, 2020

1. The defendant shall pay to the plaintiffs the amount corresponding to the "total amount of recognition" in the attached Table 1 attached thereto and 5% per annum from November 16, 2018 to November 13, 2020, and 12% per annum from the next day to the day of full payment.

2. The plaintiffs' respective remaining claims are dismissed.

3. Of the costs of lawsuit, 30% is borne by the Plaintiffs, and the remainder 70% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from November 16, 2018 to the service date of a copy of the complaint of this case, and 12% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The Plaintiffs acquired the ownership of each of the relevant households indicated in the “household column” in the “acquisition of ownership” column in the attached Table 1 attached hereto as of the corresponding date, Ulsan-gu F apartment Gdong (hereinafter “Plaintiff apartment”) and the Plaintiff, A, and C are residing in the Plaintiff apartment.

B. The Defendant newly constructed and sold J apartment on the ground of the 28th floor above the ground level above the 28th floor above the ground level above the 2nd floor above the 2nd floor above the Plaintiff apartment, and on the ground of the 879 unit units above the 879 unit, and the Defendant apartment was completed with the structural construction around November 14, 2018. [Grounds for recognition] There was no dispute over the facts, Gap 1, 2, 7, 15, and 16, each entry in the evidence above the 2nd ground below the Plaintiff apartment, this court’s substantial fact, the purport of the entire pleadings, and the purport of the whole pleadings.

2. Summary of the plaintiffs' assertion

The plaintiffs secured sufficient sunshine before the new construction of the defendant apartment, but the defendant newly constructed the defendant apartment building adjacent to the plaintiff apartment, thereby blocking sunshine exceeding the limit of tolerance under the social norms. Accordingly, the plaintiffs suffered considerable mental suffering in their daily lives on the apartment house that suffered property damage or resides in the property value of the apartment owned by them. Therefore, in the attached Table 1, the plaintiffs A, C, and D, who are residing in the plaintiff apartment, seek payment of each corresponding money stated in the "property value decline" and "property value decline" stated in the attached Table 1, respectively, and the payment of each corresponding money stated in the "property value decline".

(a) Relevant legal principles;

If a land owner, etc. has a value as an objective living benefit, it may be legally protected if the sunshine benefit he/she has enjoyed from the previous one is deemed that it is worth an objective living benefit. In the event that the sunshine interruption that has been previously enjoyed in the land concerned has occurred due to the increase of the number of sunlight that occurs due to the construction of a new building or structure in the vicinity, i.e., the increase of the number of sunlight that occurs, the degree of sunlight sunshine that has been generated in the past shall generally exceed the limit of tolerance of the land owner in light of social norms in order to be evaluated as an illegal and harmful act beyond the scope of legitimate exercise as a legitimate exercise of right. Whether the sunshine interruption exceeds the limit of tolerance under the social norms should be determined by comprehensively taking into account all the circumstances, such as the degree of sunshine interruption, the legal nature of the damage benefit, the use of the damaged building, the regional nature, the right to use the land, the possibility of preventing harm and avoiding damage, the possibility of violation of public law regulations, and the progress of negotiations (see, e.g., Supreme Court en banc Decision 2008Da444.

In addition, with respect to the above criteria for the limit of admission, in light of the characteristics of the national land in Korea, narrowness, tendency of high-riseing of buildings for the efficient use of land in large cities, and construction-related laws and regulations on the restriction on the height of buildings for the purpose of securing sunlight, etc., it is reasonable to deem that the limit of admission once exceeds the limit of admission in the event that at least 4 hours in total (hereinafter referred to as "total sunlight hours") during the eight hours between 8:0 and 16 hours based on the winter date is secured, or that the sunlight hours during the six hours between 9:0 and 15 (hereinafter referred to as "speed hours") are continuously secured at least two hours during the six hours between 9:0 and 15.

B. Specific determination

In addition to the written evidence Nos. 12 through 14 and the result of the fact-finding reply to K of this Court, it is recognized that the day hours of the plaintiff's apartment before and after the construction of the defendant's apartment, changed as shown in the annexed 2 sunshine time change table for each household.

According to the above facts, each household of the plaintiffs' apartment owned by the plaintiffs was secured for not less than 4 hours in total and not less than 2 hours in succession before the new construction of the defendant apartment, so there was a sufficient living benefit to be protected as to the right to sunlight. However, each day hour after the new construction of the defendant apartment building falls short of 4 hours in total due to the reduction of the above hours, and it is reasonable to deem that there was an infringement of the right to sunlight that exceeded the limit of tolerance since the continuous sunlight hours fall short of 2 hours.

Therefore, the defendant is obligated to compensate the plaintiffs for damages caused by the infringement of the right to enjoy sunshine as above.

4. Scope of liability for damages

A. The property damage caused by the plaintiffs' infringement of the right to sunshine the amount of property damage is equivalent to a decline in the market price of the building in question, barring special circumstances, and according to the result of the fact-finding reply, the market price decline of the plaintiff's apartment due to the infringement of the right to sunshine following the new construction of the defendant apartment can be recognized as the same facts as the amount stated in the attached Table 1, so it is reasonable to determine each of the above amounts as the property damage amount of the plaintiffs.

B. Limitation on liability

However, the following circumstances that are acknowledged in addition to the purport of the entire pleadings, namely, the land owner, in principle, has the ability to freely use and make profits from the land within the scope of ownership, and such ownership should be protected as far as possible, and the protection of private property rights and environmental interests constitutes an important value that requires rational harmony among all. ② Since the land is narrow and the land is particularly in an urban area, there is a difficulty in ensuring sunshine benefits absolutely to any one party; ③ there is no circumstance to deem that the Defendant violated the construction-related Acts and subordinate statutes while constructing the Defendant apartment; ④ The Defendant’s new apartment construction did not constitute tort if the obstruction of light generated in the Plaintiff apartment by the Defendant’s new construction did not exceed the tolerance limit; ④ The Defendant’s liability should be limited to 70% of the amount recognized in the above paragraph (a) in light of the overall circumstances revealed in this case, such as the fact that it is difficult to view it as reasonable from the perspective of fairness.

C. In light of the importance of sunshine in operating a pleasant residential environment of consolation money, it is reasonable to deem that a person who resides in a situation where the infringement of the right to sunlight exceeds the tolerance limit has suffered considerable mental suffering due to the aggravation of living environment, etc. separate from property damage, and it is difficult to compensate only for property damage caused by the decline in the real estate market price.

Therefore, the defendant is obligated to pay consolation money for mental distress to the plaintiff A and C who suffered infringement of the right to enjoy sunshine that exceeds the tolerance limit while residing in the plaintiff apartment among the plaintiffs, and the amount of consolation money is reasonable to determine the amount of consolation money as stated in the attached Table 1 in consideration of all the circumstances such as the degree of damage and the period of residence of the above plaintiffs.

D. Sub-committee

Ultimately, the defendant is obligated to pay to the plaintiffs the amount in the "total amount of recognition" column of attached Table 1 as compensation for damages caused by the infringement of the right of sunshine and to pay damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from November 16, 2018 to November 13, 2020, which is appropriate for the defendant to resist the scope of the obligation to perform as requested by the plaintiffs, as the result of the completion date of the construction of the defendant's aggregate building after November 16, 2018, and from the next day to the day of full payment.

5. Conclusion

Therefore, each of the plaintiffs' claims is accepted, and each of the remaining claims is dismissed, and it is so decided as per Disposition.

Rehabilitation of Judges

1) The Plaintiffs also seek damages from infringement of the right to mutual assistance and privacy, in addition to damages caused by the interruption of sunshine due to the cause of the claim in the warden.

Although the purport was that the purport was to seek only damages arising from the interruption of sunshine as of August 28, 2020, the purport of the claim and the cause of the claim were modified.

shall be based on the cause of such action.

A person shall be appointed.

A person shall be appointed.