[1] The meaning of “business operator” under Article 31(1) of the former Framework Act on Environmental Policy, and meaning of “person who caused” under Article 44(1) of the Framework Act on Environmental Policy, and whether the business operator of a workplace where environmental pollution occurred is generally included in the person who caused the damage (affirmative)

[2] In a case where a person who installs, preserves, and manages a railroad causes damage due to a defect in the installation, preservation, and management of a railroad, whether he/she is obligated to compensate for such damage pursuant to Article 758(1) of the Civil Act (affirmative) and the meaning of “defect in the installation or maintenance of a structure”

[3] Whether there is a railroad noise and vibration exceeding the standard under the administrative law regulating railroad noise and vibration, and it can be determined that there is an unlawful infringement exceeding the reference limit (negative) / Whether railroad noise and vibration should be considered in determining the limit of participation exceeding the standard under the administrative law (affirmative)

[1] Article 31(1) of the former Framework Act on Environmental Policy (wholly amended by Act No. 10893, Jul. 21, 2011) provides that “When any environmental pollution or environmental damage has occurred due to a place of business, etc., the relevant business entity shall compensate for such damage.” Article 44(1) of the Framework Act on Environmental Policy amended by Act No. 10893, Jul. 21, 201 provides that “When any environmental pollution or environmental damage has occurred, the person who caused such environmental pollution or environmental damage shall compensate for such damage.”

As above, in cases where liability for environmental pollution or environmental damage (hereinafter “environmental pollution”) is recognized following the revision of the Framework Act on Environmental Policy, it was extended to all environmental pollutions, not limited to the occurrence of the workplace, etc., and the subject of responsibility due to environmental pollution changed from “business entity” to “person who is responsible for the occurrence of environmental pollution.” Here, “business entity” refers to a person who has de facto and economic control over the workplace, etc. by raising expenses to operate the workplace, etc. at the time of discharging pollutants, which are the cause of damage, and making a decision thereon, and “person who caused environmental pollution” refers to a person who causes environmental pollution by an act or object of a person who is affected by his/her own act

In the event of environmental damage caused by the workplace, etc., the business operator or the person who caused the environmental damage shall compensate for the damage even if there is no cause attributable to him/her pursuant to the provisions of the Framework Act on Environmental Policy. In this case, environmental pollution includes damage to human health, property, and the environment due to noise and vibration. Therefore, the business operator or the person who caused the damage is liable

[2] A person who installs, preserves, and manages a railroad has a duty to compensate for any damage caused by a defect in the construction, preservation, and management of the railroad pursuant to Article 758(1) of the Civil Act. The defect in the construction or preservation of a structure refers to a state in which the relevant structure does not have safety requirements to be equipped for its intended purpose. Here, a state in which safety is not satisfied, i.e., a state in which there is a risk of harm to others, includes not only cases where a physical or external defect exists in the physical facility itself, which constitutes the relevant structure, or where there is no necessary physical facility, but also cases where the damage exceeds the extent to be generally accepted by social norms in excess of a certain limit in the course of using the structure for its original purpose (hereinafter “the limit of participation”). In such cases, the specific nature and degree of damage, the public nature of the damaged interest, the nature and attitude of the harmful act, the public nature of the harmful act, the possibility of preventing the perpetrator from harmful act, the possibility of avoiding damage, the nature and purpose of land use in the region, etc.

[3] It cannot be readily concluded that there exists a railroad noise and vibration exceeding the standard set by the administrative laws governing railroad noise and vibration, and there is an unlawful infringement beyond the generally accepted level (hereinafter “limit of participation”) and thus, civil liability is established. However, the above administrative laws and regulations are mainly aimed at protecting the health or property of neighboring residents and the environment from noise and vibration, and thus, the railroad noise and vibration exceeding the above standard should be considered as important to set the limit of participation.

[1] Article 3 subparag. 1 (see current Article 3 subparag. 1), subparag. 3 (see current Article 3 subparag. 3), and subparag. 4 (see current Article 3 subparag. 4), Article 31(1) (see current Article 44(1)), Article 44(1) of the Framework Act on Environmental Policy, Articles 750 and 751 of the Civil Act / [2] Article 217 of the Civil Act, Articles 26 and 27 of the Noise and Vibration Control Act, Article 25 of the Enforcement Rule of the Noise and Vibration Control Act / [3] Article 217 of the Civil Act, Articles 26 and 758(1) of the Noise and Vibration Control Act, Article 25 of the Enforcement Rule of the Noise and Vibration Control Act

[1] Supreme Court Decision 9Da55434 Decided February 9, 2001 (Gong2001Sang, 606), Supreme Court Decision 2010Da98863, 98870 Decided November 10, 201 / [2] Supreme Court Decision 2010Da98863, 98870 Decided November 10, 201, Supreme Court Decision 2011Da91784 Decided September 24, 2015 (Gong2015Ha, 1596) / [3] Supreme Court Decision 201Da91784 Decided September 24, 2015 (Gong2015Ha, 1596) (Gong2015Ha, 1596), Supreme Court Decision 208Da57874, Nov. 24, 2016

Plaintiff (Law Firm Jinjin, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

Korea Rail Network Authority and one other (Law Firm Macro et al., Counsel for the plaintiff-appellant)

Busan High Court (Chowon) Decision 2014Na2054 decided March 19, 2015

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Determination as to the establishment of liability for damages (Defendant’s ground of appeal No. 1)

A. Article 31(1) of the former Framework Act on Environmental Policy (wholly amended by Act No. 10893, Jul. 21, 2011) provides that “When any environmental pollution or environmental damage has occurred due to the place of business, etc., the relevant business entity shall compensate for such damage.” Article 44(1) of the Framework Act on Environmental Policy amended by Act No. 10893, Jul. 21, 201 provides that “When any environmental pollution or environmental damage has occurred, the relevant business entity shall compensate for such damage.”

As above, in cases where liability due to environmental pollution or environmental damage (hereinafter “environmental pollution”) is recognized by the amendment of the Framework Act on Environmental Policy, it was extended to all environmental pollutions, not limited to that arising from the workplace, etc., and the subject of responsibility due to environmental pollution changed from “business entity” to “person who is responsible for the responsibility due to environmental pollution.” Here, the term “business entity” refers to a person who has de facto and economic control over the workplace, etc. by raising expenses to operate the workplace, etc. at the time of discharging pollutants, which are the cause of damage, and making a decision thereon, and the term “person who caused environmental pollution” refers to a person who causes environmental pollution by an act or object of a person who is affected by his/her act

In the event of environmental damage caused by the workplace, etc., the relevant business operator or the person who caused the environmental damage shall compensate for the damage even if there is no cause attributable to him/her under the provisions of the Framework Act on Environmental Policy. The environmental pollution includes damage to human health, property, and the environment due to noise and vibration. Therefore, the business operator or the person who caused the environmental damage is liable to compensate for the damage, barring special circumstances (see, e.g., Supreme Court Decisions 9Da55434, Feb. 9, 2001; 2010Da98863, Nov. 10, 201).

Meanwhile, a person who installs, preserves, and manages a railroad has a duty to compensate for any damage caused by a defect in the installation, preservation, or management of the railroad pursuant to Article 758(1) of the Civil Act. The defect in the installation or preservation of a structure refers to a state in which the relevant structure does not have safety requirements to be equipped for its intended purpose. Here, a state in which there is a risk to harm others, i.e., a physical or external defect in the physical facility itself that constitutes the relevant structure, or the necessary physical facility does not exist, includes not only cases where there is a risk of harm to users, but also cases where a third party suffers damage exceeding the extent that he/she should generally participate in under social norms (hereinafter “the limit of participation”) in excess of a certain limit in the course of using the structure for its original purpose. In such cases, the determination of whether there was damage exceeding the limit of participation should be made by comprehensively taking into account the nature and degree of damage, the public nature of the damaged interest, the nature and public nature of harmful act, the perpetrator’s prevention and public nature, possibility of harm, the possibility of avoiding, or damage, the land violations in public law, etc.

Inasmuch as there are railroad noise and vibration exceeding the standards set by administrative laws governing railroad noise and vibration, it cannot be readily concluded that civil liability is established for any unlawful infringement beyond the bounds of reference. However, since the aforementioned administrative laws and regulations mainly aim at protecting the health or property of neighboring residents and the environment from noise and vibration, whether railroad noise and vibration exceed this standard should be considered as important to determine the reference limit (see, e.g., Supreme Court Decisions 2011Da91784, Sept. 24, 2015; 2014Da57846, Nov. 25, 2016).

B. The lower court’s determination on the Defendants’ liability for damages is summarized as follows.

(1) From 1996, the Plaintiff operated a farm that raises Chinese cattle in the site for the farm of Kimhae-si ( Address omitted) (hereinafter “instant farm”).

After that, Defendant Korea Rail Network Authority (hereinafter referred to as the “Defendant Rail”) constructed a rear Busan New Harbor (hereinafter referred to as the “instant railroad”) and operates a train from November 201 to December 13, 201, and opened the train in a regular manner from the instant railroad to December 24, 201. Defendant Corporation was in charge of the construction and management of the instant railroad, and Defendant Korea Railroad Corporation (hereinafter referred to as the “Defendant Corporation”) operates the train business.

After November 2010, there were damages, such as oil and stillbirth, delay of growth, decrease in the birth rate, etc., among the Hanbox raised in the farm of this case. The Plaintiff disposed of Hanbox from October 5, 2012 and suspended the farm of this case.

(2) On November 3, 2010, when the noise and vibration from train traffic was measured on the instant farm on November 3, 201, when the test and operation of train on the instant railroad, the maximum noise level of 78dB (A), 5 minutes, etc. (A) was 67dB (A). According to the result of the first instance appraiser’s measurement of noise and vibration from train traffic for 24 hours from October 10, 201 to October 11, 201 by the instant farm, the maximum noise level was 63.8 to 81.8dB (A) and 5 minutes of household noise level was 51.0 to 67.7dB (A) and the maximum noise level was 39.5 to 67.2dB (V).

(3) The instant noise and vibration occurred from the train primaryly. However, the operation of a train is essential with the street, and the noise and vibration is also formed through the steel channel. In the event of noise and vibration generated over the limit to the Plaintiff due to the operation of a train through the instant railway, the Defendant Corporation and the Defendant Corporation are liable to compensate the Plaintiff for the damages by falling under the category of business operators under Article 31(1) of the former Framework Act on Environmental Policy and those under Article 44(1) of the Framework Act on Environmental Policy, as the Defendant Corporation and the Defendant Corporation are responsible for compensating the Plaintiff for the damages.

(4) Defendant Corporation, a person in charge of the installation and management of the instant steel road, has a duty of care to prevent noise and vibration damage exceeding the limit of reference due to the operation of a train while managing it even after the construction of the instant steel. In the event that the Defendant Corporation failed to perform such duty of care and thereby causes damage exceeding the limit of reference due to the operation of a train through the instant steel, the Defendant Corporation is liable to compensate for such damage in accordance with Article 758(1) of the Civil Act.

(5) With respect to livestock damage caused by railroad noise and vibration, the criteria set by the “Assessment Method and Compensation Standard for Environmental Damage” established by the Central Environmental Dispute Resolution Committee under the Ministry of Environment may be an important factor to determine whether or not the noise and vibration has occurred beyond the limit of participation due to noise and vibration. The noise and vibration generated from the operation of a train from November 201, when the train was operated on the instant railroad continuously exceeded the criteria for recognition of livestock damage as prescribed by the “Assessment Method and Calculation Standard for Environmental Damage”. Furthermore, the noise and vibration generated from the train operating the instant railroad, rather than the noise from the aircraft passing through the instant farm area, appears to be the direct cause of the damage caused by the noise and vibration generated from the train operating the instant railroad rather than the noise from the aircraft passing through the instant farm. Even if the straight distance between the instant farm and the steel does not exceed 62.5 meters, the measures for prevention of noise and vibration were not prepared. Comprehensively taking account of these circumstances, etc., the damage caused by noise and vibration exceeding the limit of noise and vibration arising from the operation of the instant railway.

C. In full view of the aforementioned circumstances, it may be deemed that the Plaintiff suffered damage from the noise and vibration generated from the instant steel farm constructed by the Defendant, while raising Korea-do rain in the instant farm, and the Defendants are jointly and severally liable to compensate the Plaintiff for such damage. The lower court’s judgment to the same purport is consistent with the legal doctrine as seen earlier. In so determining, the lower court did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine as to the interpretation and application of the Framework Act on Environmental Policy and the responsibility of the owner of a structure under Article 758(1) of the Civil Act and the limit of participation in daily life due to railroad noise and vibration.

2. Determination as to the calculation of damages (Ground of appeal No. 3 by Defendant Corporation and ground of appeal No. 2 by Defendant Corporation)

A. The lower court determined as follows regarding the amount of damages by Defendant Corporation.

The instant farm was deprived of its location due to noise and vibration generated from train operation through the instant railroad. The Defendants are liable for compensating for the costs of the farm relocation and ordinary damages incurred inevitably in the course of the relocation of the farm, as well as for compensating for the amount equivalent to the exchange value of the instant farm, given that there are special circumstances that the instant farm is physically impossible to move as a stable building. Furthermore, the Plaintiff is liable for compensating for business suspension for nine (9) months, which can be seen as the usual period of time required to secure substitution for the instant farm from October 5, 2012 after the closure of the instant farm.

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the pleading principle or calculation

3. Determination on limitation of liability (Defendant Corporation’s ground of appeal No. 2)

The lower court limited the scope of Defendant Corporation’s liability for damages to 90% on the ground that noise and vibration generated in the course of constructing the instant railroad prior to the operation of a train by Hyundai Industrial Development Co., Ltd. had influenced damage, such as the loss of oil, stillbirth, decline in water ratio, and delay in growth of the instant farm, and that it appears to have affected a certain degree of damage to the instant aircraft noise level farm measured by the instant farm. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said judgment is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on limitation of liability, contrary to what is alleged in the grounds of appeal

4. Conclusion

All appeals by the Defendants are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)