[1] Criteria and factors to determine whether the degree of interference with daily life due to road noise exceeds the “limit of participation”

[2] Whether there is a road noise exceeding the environmental noise standard under the Framework Act on Environmental Policy as to noise in a roadside area, and it can be determined that there exists an unlawful infringement exceeding the civil “limit of reference” (negative)

[3] In a case where a propriety of a claim seeking prevention or elimination of noise due to road noise is determined, whether the benefits to be received by the party who seeks permission of the claim and the disadvantages to be suffered by the other party and the third party should be compared and compared (affirmative)

[1] Whether noise generated from roads is beyond generally accepted social norms (hereinafter “school noise”) and the degree of daily life pain (hereinafter “school noise”) should be determined by comprehensively taking into account all circumstances such as nature and degree of damage, public nature of damaged benefits, harmful act’s attitude, public nature, prevention measures against the perpetrator or possibility of avoiding damage, violation of regulation standards in the public law, regionality, and priority of land use, etc. In addition, as facilities indispensable in modern life, are provided with great convenience in inter-regional traffic and balanced development, and national industrial and economic activities. The urban development project also takes place as an essential factor in constructing major road networks around the urban development project. In light of the reality that the automobile traffic forms a large part of traffic, and the urbanization and industry is under way, the occurrence and increase of road noise falls within the category of changes resulting from social development, and it should also be determined by taking into account the following factors: (a) the scope of exclusive motorways road traffic, which is an important factor in the overall operation of the national expressway, as well as the overall public road noise.

[2] The environmental standards under the Framework Act on Environmental Policy, as a public law standard, are desirable standards to be maintained in order to protect the health of the people and to create a pleasant environment. In other words, the environmental standards are set as policy goals in environmental administration; the types and grades of roads as provided by the Road Act or the Road Traffic Act; the number of lanes; road and residential relationship as provided by the Road Act and the Road Traffic Act; and therefore, only set the applicable standards according to the applicable area without considering the following: it is difficult to deem the road noise standards under the Framework Act on Environmental Policy to be applicable to all circumstances. Whether road traffic noise on the second and upper floors complies with the environmental standards under the Framework Act on Environmental Policy is determined by the noise and vibration test method as stipulated under the Framework Act on Environmental Policy (Public Notice of the Ministry of Environment No. 2010-142). However, the determination of whether the noise level on the second and upper floors exceeds the noise level measured in the actual indoor part, it cannot be readily concluded that it exceeds the environmental noise standards under the civil law.

In a case brought about a cause of interference with daily life due to road noise, it is reasonable to determine whether the noise level measured in the state of opening all windows in the direction of noise source, such as roads, exceeds the environmental noise standard under the Framework Act on Environmental Policy, in the living room where daily life is mainly conducted, barring special circumstances.

[3] A claim seeking the prevention or exclusion of noise caused by road noise differs from the claim for damages, which differs from the contents and requirements of the claim for monetary compensation. Thus, even under the same circumstance, there may be differences in the importance of factors to be considered according to the contents of the claim. If such a claim is permitted, not only the parties to the lawsuit but also the interests of a third party. Thus, the court which determines the propriety of the claim shall compare and bridge the benefits to be received by the party who sought the claim and the disadvantages to be received by the other party and the third party when the claim is permitted.

[1] Articles 205, 206, 214, and 217 of the Civil Act / [2] Articles 205, 206, 214, and 217 of the Civil Act, Article 12 (1) and (2) of the Framework Act on Environmental Policy, Article 2 [Attachment] of the Enforcement Decree of the Framework Act on Environmental Policy / [3] Articles 205, 206, 214, and 217 of the Civil Act

[1] Supreme Court Decision 98Da47528 Decided July 27, 1999 (Gong1999Ha, 1755), Supreme Court Decision 2004Da37904, 37911 Decided June 15, 2007 (Gong2007Ha, 1062) / [2] Supreme Court Decision 2008Da49868 Decided November 25, 2010

Korea Highway Corporation (Law Firm Lee & Lee LLC, Attorneys Kim In-soo et al., Counsel for the defendant-appellant)

As shown in the attached list of the Defendant (Attorney Lee Byung-gil, Counsel for the defendant-appellant)

Daegu High Court Decision 2010Na4845 decided September 21, 2011

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

The grounds of appeal are examined.

1. Whether the degree of noise generated from roads exceeds generally accepted social norms (hereinafter “living obstruction limit”) and should be determined by comprehensively taking into account all the circumstances, including the nature and degree of damage, the public nature of benefits from damage, the form of harmful act, the public nature of harmful act, the perpetrator’s preventive measures or the possibility of avoiding damage, the violation of regulatory standards in the public law, regionality, and the follow-up relationship of land use, etc. (see Supreme Court Decisions 98Da47528, Jul. 27, 199; 2004Da37904, 37911, Jun. 15, 2007). In addition, the issue of whether the road is an essential facility in modern living, and its operation and balanced development between regions and convenience in industrial and economic activities, and the occurrence of traffic noise and its overall residential and industrial development, which are essential factors in constructing the urban development project, should be determined to the extent that it takes account of the overall residential and industrial development of the road.

Meanwhile, environmental standards under the Framework Act on Environmental Policy as public law are desirable standards to be maintained in order to protect the health of the people and to create a pleasant environment, i.e., the criteria set as policy goals in environmental administration (see Supreme Court Decision 2008Da49868, Nov. 25, 2010). The above environmental standards are set only according to the applicable area without considering the kinds and grades of roads, the number of lanes, and the rear relationship between roads and dwelling as prescribed under the Road Act or the Road Traffic Act, so it is difficult to deem that the roads in all circumstances can be applied as specific standards for regulations. Whether road traffic noise on the second and upper floors complies with the environmental standards under the Framework Act on Environmental Policy is determined by noise and vibration test standards (Public Notice of the Ministry of Environment No. 2010-142, Oct. 25, 2010). However, it is reasonable to determine that the noise level exceeds the noise level under the civil law, considering whether the noise level on the second and upper floors exceeds the noise level in the area.

In a case brought about a cause of interference with daily life due to road noise, it is reasonable to determine whether the noise level measured in the state of opening all windows in the direction of the noise source, such as roads, exceeds the environmental noise standard under the Framework Act on Environmental Policy, in the living room where daily life is mainly conducted, barring special circumstances.

Furthermore, a claim seeking the prevention or exclusion of noise due to road noise differs from the content and requirements of the claim for damages, which differs from those of the claim for monetary compensation. Thus, even under the same circumstance, there may be differences in the importance of factors to be considered according to the contents of the claim. If such a claim is permitted, not only the parties to the lawsuit but also a third party’s interests. As such, the court that determines the legitimacy of the claim should compare and bridge the benefits to be received by the party who sought the claim and the disadvantages to be received by the other party and the third party when the claim is permitted.

2. The lower court determined as follows: (a) Article 10(2) of the former Framework Act on Environmental Policy (wholly amended by Act No. 10893, Jul. 21, 201); (b) Article 2 of the Enforcement Decree of the said Act (wholly amended by Presidential Decree No. 23967, Jul. 20, 201); (c) the environmental standards on the roadside general residential area (DB) are 65 cclux (dB), night (22:0 to 00) 5 cclux (dB); and (dB) if the noise level exceeds 40 ccluities (dB); (d) the Plaintiff began to have the depth of the water surface before the implementation of the construction project; and (d) the Plaintiff’s implementation of the construction project on the expressway’s implementation of the construction project on the highway’s implementation of the construction project on the housing site development project; (d) if the apartment noise level exceeds 60 cclux (DB), the Plaintiff’s implementation of the noise level becomes known to 10 or more than 70 ever.

3. However, the lower court’s determination is difficult to accept in the following respect.

(5) According to the reasoning of the lower judgment and the record, the Defendants were bound to be able to take measures to prevent noise from occurring on or around July 197, 198, and the designation decision of the expanded construction section was publicly announced to the effect that the construction work would be expanded to eight-lanes on or around the road. On May 6, 198, the “○○○ Area Housing Site Development Project” located in the apartment site development area was implemented from July 30, 199 to December 31, 2004, and the above expressway expansion work was carried out from April 1998 to December 203, 2003. The lower court, as well as from April 10, 2008, where the Defendants were able to know about the daily life of the highway at the time of the implementation of the measures to prevent noise and vibration of the highway, to the extent that the Defendants were able to know about the daily life of the highway at the time of the implementation of the measures to prevent noise and vibration of the highway.

Examining such circumstances in light of the legal principles as seen earlier, it is difficult to readily conclude that the Plaintiff is obliged to implement soundproof measures on the ground that there was interference with daily life exceeding the “limit of participation” solely on the grounds stated in the lower judgment in the instant claim.

4. The lower court should have determined whether the Plaintiff was liable to implement soundproof measures against the Defendants by fully taking account of the aforementioned circumstances. However, the lower court did not measure the noise level at the location where the Defendants’ daily life actually takes place, and did not properly consider the characteristics of the instant expressway and the use of the land, and did not compare and compare the benefits and disadvantages that the litigant and the road users would receive by accepting the instant claim, and determined that the Plaintiff is obligated to ensure that the noise generated on the instant expressway does not reach 65 cc (dB) or more. In so doing, the lower court erred by misapprehending the legal principles on the “limit of Participation” and the right to claim prevention due to interference with daily life due to noise caused by the misapprehension of the legal principles on the “limit of Access” in the road noise and the right to claim prevention caused by interference with daily life, thereby failing to exhaust all necessary deliberations,

5. In addition, the lower court determined that the Plaintiff was liable to implement soundproofing measures without clearly stating the legal grounds for ordering the prevention or exclusion of noise due to the noise caused by the instant expressway noise. After remanding, the lower court pointed out that it is necessary to determine the legitimacy of the measures after clarifying the legal grounds therefor.

6. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Defendants: omitted

Justices Lee Sang-hoon (Presiding Justice)