2016Da233538 (Confirmation of Non-existence of Obligations)

2016Da233545 (Counterclaim) Damage (Counterclaim)

Korea Highway Corporation

Law Firm Lee & Lee, Counsel for defendant-appellant

Attorney Kim Yong-chul

A person shall be appointed.

Law Firm Gong, Attorney Park Gong-hwan

Attorney Lee Dong-hwan, Counsel for the defendant-appellant

Suwon District Court Decision 2014Na10790 (main office) decided June 9, 2016, 2014Na10806

(Counterclaim) Judgment

November 28, 2019

The appeal is dismissed.

The costs of appeal are assessed against Plaintiff (Counterclaim Defendant).

The grounds of appeal are examined.

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

A. Determination of illegality as a requisite for the establishment of a tort is based on the determination of all relevant acts only as a whole.

It is not required to be determined individually and relatively in each act at issue.

As such, even if any facility is operated lawfully or provided for public use, such facility may take place.

a third party is damaged due to a harmful discharge, the illegality of the harmful discharge shall be separately determined.

and the degree of the harm is generally accepted by social norms. In such case, the standard of judgment shall be identified as the degree of harm.

It is whether the degree of reference exceeds the limit (hereinafter referred to as "limit of reference") (Supreme Court Order February 9, 2001

199Da55434, see Supreme Court Decision 199Da5434.

A person who installs, preserves, and manages an expressway shall reduce due to any defect in the installation, maintenance, and management thereof.

In the event of such damage, there is a duty to compensate for it in accordance with Article 758(1) of the Civil Act.

any defect in the installation or preservation of a facility shall be safe in accordance with the purpose of the facility.

means a state in which the person has not been deprived of safety, i.e., a state in which the person does not have safety;

physical facilities constituting the structure in question, in a state that there is a risk of causing harm to people;

A user does not have physical or external defects or necessary physical facilities in his/her own;

(b) the original purpose, etc. of the structure, as well as where there is a risk of undermining the

In excess of a certain limit in the course of use to a third party in excess of the generally accepted limit;

injury includes injury. In such a case, whether there has been injury exceeding the limit;

Ministry of Justice, specifically, the nature and degree of damage, the public nature of the benefit of damage, the type and appearance of the harmful act; and

The public nature of the act, the prevention of the perpetrator or the possibility of avoiding the loss, and the standard of regulation under public law

all circumstances, such as whether the land is against, the characteristics and uses of the area where the land is located, and the follow-up relationship of the land use;

Supreme Court Decision 2010Da98863, 98870 Decided November 10, 201

Supreme Court Decision 2011Da91784 Decided September 24, 2015, etc.

Generally, in a claim for damages caused by an illegal act, the perpetrator's harmful act, the loss of the victim

The claimant shall bear the burden of proving the causal relationship between the harmful act and the damage suffered by the victim.

A victim shall bear expenses: Provided, That compensation for damage caused by pollution caused by air pollution or water pollution, etc.

In the lawsuit filed by the injured party, the existence of a factual causal relationship is scientificly strict.

Demanding certification may result in a de facto refusal of judicial remedies due to high seas.

On the other hand, technical and economic standpoints that much more easy to investigate the cause of the perpetrator than the victim.

Since there are many concerns that the perpetrator may conceal the cause of the occurrence of the damage, the perpetrator may do so.

(1) discharged any harmful material and reached the damaged article, thereby causing damage to it.

- If the perpetrator does not prove that it was not harmful on the part of the perpetrator, the harmful act and the victim

the causal relationship between the occurrence of damages may be recognized, but in this case, at least any damage may be caused.

that the person discharges any hazardous substance, and the degree of the harmfulness is to the extent of social norms.

fact that it exceeds the damage, the fact that it reaches the damaged article, and the fact that the damage was inflicted on the victim thereafter.

The burden of proof on the victim is still borne by the victim (Supreme Court Decision 2012Da2012 Decided October 11, 2013).

Supreme Court Decision 11161, Supreme Court Decision 2014Da67720 Decided December 29, 2016

B. The facts of the instant case acknowledged by the lower court by citing the first instance judgment are as follows.

(1) Plaintiff (Counterclaim Defendant, hereinafter referred to as Plaintiff) is the managing authority of the Youngdong Highway, and Defendant (Counterclaim Defendant, hereinafter referred to as Plaintiff)

Plaintiff, hereinafter referred to as “Defendant”) is about 80 Km km road in Yong-dong Highway (hereinafter referred to as “Defendant”)

The orchard is operated in the south of this case.

(2) On the other hand, while the instant orchard has a little side higher than the Yongdong Highway, the same side is less than a little.

approximately 200 meters adjoining to an expressway in the form of a perfect slope, and from the fourth lane on the expressway

10m, on the fourth-lane, this is about 6-7m from the end of the side, and the expressway and orchard are located far from the end of the side.

on the boundary of the Gu, approximately two meters of wire-net fences are installed.

(3) The average daily traffic volume on the highway section abutting on the instant orchard is 57,000,000;

The plaintiff was 57, 932, 60, 894 in 2009, 57, 932, 2010, and 894 in Youngdong Highway, and the plaintiff was chloude if snow is snowed on the Youngdong Highway.

Pium solution (30%) and salt shall be carried out in a way that they are spraying at a location near the floor.

The amount of Piumium used in the above section is 390km in 2008, 873 g in 2009, 980 g in 2010

is the same.

(4) Section 1 and 2 of the fruit trees planted in the instant orchard are planted in the first and second heat abutting on an expressway among the fruit trees planted in the instant orchard.

The growth and fruit of trees are growing in comparison with fruit trees planted in other places.

Specifically, as of 201, three diversary trees and one diversary tree among fruit trees in the instant orchard as of 201.

In death, 42 weeks and 41 peach tree grow significantly, and on October 2012.

Based on the basis of the fruit trees of this case, 7 peach tree, 26 peach tree, 2 peach tree among the fruit trees of this case

As a result, 42 weeks and 56 peach tree grow significantly.

(5) On July 4, 2011, the Defendant has obstructed the surface of the water due to noise generated on the expressway, and each sale of the water.

Due to the use of dysiums, the use of dysiums has suffered damage, such as with death of fruit water in the instant orchard.

filed an application for adjudication with the Central Environmental Dispute Resolution Committee, claiming damages, and the Central Environment

The Dispute Commission did not recognize the damage caused by noise on November 3, 201, but it did not sell smoke and remove snow.

Recognizing damage caused by such action, the plaintiff must pay 8,844,760 won to the defendant.

The decision was made.

C. The lower court, citing the first instance judgment on the premise of the foregoing factual basis, determined as follows.

C. In other words, comprehensively taking account of the following circumstances, the fruit that was planted near the Highway among the instant orchard.

injury caused by the decrease in yield due to the bad growth of the number and the stale death.

Smoke from an expressway managed by the plaintiff and scattering of a snow removal used by the plaintiff

It is reasonable to see that it is based on the flying place (in bulk).

(1) The continuous occurrence of a motor vehicle interferes with the optical synthesis of trees on the side of a road; and

It is known that it adversely affects the growth of fruit by undermining the filial effect.

(2) The salt contained in the snow removal agents shall reduce the durability of plants, shall impair the water absorption, and shall not prejudice the water absorption.

Disturbing synthetic action, affecting the growth of fruit trees, and, in depth, terminating the use of snow removal chemicals.

It is known that it would make fruit trees defolied by 8 years thereafter.

(3) According to the study of the expert, damage caused by scattering of salt by snow removal chemicals is high.

This 15m and surrounding 100m, and the surrounding 10 to 15m shall be damaged, and the damage shall be high, and the luxle slope shall be

The damage is greater than that on the land in a slope, and the instant orchard is about 10 meters on the expressway.

It is located in a slope of a downhill.

(4) Of the instant orchard, the fruit from trees planted in first and second heat near the expressway among the instant orchard.

Sales ratio of the number of trees shall be 5%, but the selling ratio of the fruit trees produced from trees planted after the third column shall be 5%.

95% and there is apparent damage to fruit trees planted in first and second heats.

(5) Since the rapid increase in the use of the Plaintiff’s snow removal agents from 2009, the Defendant’s excessive water damage

I began to appeal for this issue.

(6) As of October 2012, points different from points where damaged trees were planted in the instant orchard.

Although there is no difference in the PH concentration, the PH of soil smelting chemicals in winter has increased in spring.

In light of the expert research that if you get reduced from the summer, it will change to the weak nature.

The determination that only the PH concentration measured in October, 200, did not cause any damage to the instant orchard.

subsection (b) of this section.

(7) Unlike the fruit trees of the instant orchard, damage is inflicted only on the fruit trees planted adjacent to the expressway.

there is no apparent cause for such action.

D. In accordance with the above legal principles, the above facts and the circumstances discussed by the court below in accordance with the above legal principles

The following circumstances revealed by the Plaintiff, i.e., the instant orchard among the Youngdong Highway

Before expanding the neighboring part into four lanes, the Defendant had operated the instant orchard.

In addition to the fact that the plaintiff seems to have seen, it is originating on the Youngdong Highway installed and managed by the plaintiff.

The fruit of this case operated by the Defendant, such as tobacco produced by the Plaintiff, and the salt ingredients of snow materials scattered by the Plaintiff.

(1) The sales rate of the goods shall be reduced due to the arrival of the Board of Governors;

not only causes damage but also illegal because it exceeds the ordinary reference limit.

can be seen as recognized.

Although the court below did not clearly determine whether the plaintiff's harmful act was illegal

However, the court below recognized the plaintiff's liability for damages on the premise that such illegality is recognized.

In addition, it appears that the court below rejected the appraiser T’s appraisal results, whichever is somewhat different.

Although there are appropriate parts, the court below bears the burden of proving the responsibility for the arrival of hazardous substances.

It does not seem to be judged on the premise that the perpetrator is not the victim.

Ultimately, the lower court’s judgment on this part of the judgment is unlawful as alleged in the grounds of appeal.

In the incomplete hearing on the above, the incomplete hearing, the incomplete reasoning, the misapprehension of legal principles, or the relaxation of the burden of proof of pollution lawsuits.

There is no error of misapprehending the legal principles.

2. As to the third ground for appeal

According to the reasoning of the lower judgment, the lower court: (a) the number of fruit trees produced from other fruit trees among the instant orchard;

Sales rate of goods is 95%, and the sales rate of the fruit produced from the damaged items is 5%.

Next, the amount of damages shall be calculated by considering the damage rate of the damaged item as 90%, which shall be natural records, such as the current year (PPP).

It is clear that the liability of the plaintiff is limited because it contributed to the occurrence of the damage suffered by the defendant.

of the Defendant’s property damage. Therefore, the Defendant’s damage liability is recognized.

The judgment of the court below that did not limit intentional liability is erroneous in the legal principles on limitation of liability.

The allegation in this part of the grounds of appeal that there was erroneous error is not acceptable.

3. Conclusion

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

D. This decision is delivered with the assent of all Justices.

Justices Ansan-chul

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan of the District Court