(영문) 대구지방법원 2021.5.13. 선고 2018가합203245 판결

1. The defendant shall pay to the plaintiffs the amount of money stated in the attached Form 5's "amount of discount" as well as 5% per annum from July 14, 2018 to May 13, 2021, and 12% per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from July 14, 2018 to the delivery date of the application for modification of the claim and the cause of the claim as of March 17, 2021, and 12% interest per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties

1) The plaintiffs are the owners of each relevant household, or those who received claims from them, indicated in the "Number of Claim No. 2 Schedule of Attached Table 2 of the Daegu Suwon-gu B Building C" (hereinafter referred to as the "Plaintiffs' buildings").

2) The Defendant purchased the Daegu Suwon-gu D site abutting on the side located on the southwest of the building of the Plaintiffs on January 25, 2017, and newly constructed a neighborhood living facility building of the 1st basement and the 11st floor above the ground on that ground (hereinafter “instant building”).

B. The Defendant’s new construction of the instant building and its surroundings

1) On December 23, 2016, the Defendant applied for a building permit, and thereafter commenced construction with the permission. On July 14, 2018, the external structural construction was completed by building concrete building sites on the rooftop of the instant building.

2) The Plaintiffs’ building is an apartment building of the 15th floor size above the ground, and the instant building is a business facility of the 11th floor size, approximately 14.70 meters straight lines. The location of the Plaintiffs’ building and the instant building, the location of the building, and the location of the E-dong building that affects the sunshine of the Plaintiffs’ building in addition to the instant building, are as follows:

A person shall be appointed.

C. Prior to and after the construction of the instant building, changes in the hours of sunshine between the Plaintiffs’ households

1) The total number of sunlighting hours of the Plaintiffs’ building before and after the new construction of the instant building (the total number of sunlighting hours between 8:00 and 16:00 on the basis of wintering day) and the continuous sunlighting hours (the continuous sunlighting hours between 9:00 and 15:00) are as shown in attached Table 3.

2) The appraisal results of changes in the official rate of the Plaintiffs’ building before and after the construction of the instant building are as shown in the attached Table 4,000 official rate changes.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 7 (including the number of branch offices), Eul evidence Nos. 1 through 3, and the result of appraisal such as infringement of sunshine against appraiser M, the result of the market price appraisal against appraiser N, the result of inquiry about appraiser M, and the replacement to appraiser N

As a result of the appraisal supplementation, the whole purport of the pleading

2. The plaintiffs' assertion

Since the Defendant’s new construction of the instant building adjacent to the Plaintiffs’ building infringed the Plaintiffs’ right to enjoy sunshine of each of the instant housing units, and the public interest rate has been significantly decreased due to the blocking of the view, the Defendant, who is the project proprietor of the instant new building, is liable to compensate the Plaintiffs for the property damages suffered by the Plaintiffs due to the infringement of the right to enjoy sunshine and the right to enjoy sunshine exceeding the tolerance limit under social norms.

After the completion of the construction of the building of this case, the plaintiffs suffered a considerable mental suffering in addition to property damage due to the infringement of the right to sunshine and the right to mutual assistance, so the defendant is responsible for compensating the plaintiffs for the mental damage suffered by each infringement that exceeds the tolerance limit under the social norms.

Therefore, the defendant is obliged to pay each of the money stated in the separate sheet No. 2 of the No. 2 of the claim amount and damages for delay as property damages and consolation money for the above unlawful acts.

3. Main safety defenses.

A. The defendant's assertion

Plaintiff F asserted that from the owners of the Plaintiffs’ building G, Plaintiff J received each damage claim from the remaining co-ownership right holders of the Plaintiffs’ building K, but in light of the fact that the date of preparation is omitted in the contract for the assignment of claims, that the contract for the assignment of claims was submitted after the lapse of a reasonable period from the date of filing of the instant lawsuit, and that there is no evidence to know the relationship between the transferor and the transferee, this constitutes a litigation trust and thus,

B. Determination

The circumstance cited by the defendant alone is insufficient to recognize that the assignment of claims to the above plaintiffs constitutes a conspiracy, false indication, or a litigation trust, and there is no other evidence to acknowledge it.

Rather, according to the following circumstances, which can be seen by comprehensively taking account of the aforementioned facts and the evidence revealed, i.e., the address column of Plaintiff F in the complaint and the assignment contract, Plaintiff F appears to be currently residing in the building G of the Plaintiffs, and the owners of the Plaintiffs’ building G of the Plaintiffs’ building were to reside in the Jin-si, which is necessary for Plaintiff F to conduct the instant lawsuit, and Plaintiff J also needs to be transferred the right to claim damages against the Defendant from the remaining co-owned share holders, considering that Plaintiff J is residing in the said building as the co-owned share holders of the Plaintiffs’ building K, and thus, it is difficult to view the said assignment of claim as a voluntary lawsuit trust conducted with the intention to conduct the instant litigation without a genuine intent to acquire the claim.

Therefore, this part of the defendant's defense is without merit.

4. Occurrence of liability for damages;

(a) Damage caused by infringement of the right to sunshine;

1) Relevant legal principles

If a land owner, etc. is deemed to have a value as an objective living benefit, it may be legally protected if it is recognized that the sunshine benefit he/she had enjoyed from the previous one is worthy of an objective living benefit. In other words, the increase in sunlight that occurred due to the new construction of a building or old object in the vicinity, i.e., the increase in sunlight that has been previously enjoyed in the land in question, if the sunshine blocking that has occurred due to the decrease in the previous sunlight volume, considering all circumstances such as the degree of the sunshine interruption, the legal nature of the damage benefit, the legal nature of the damaged building, the use of the damaged building, the regional nature, the ex post facto relationship of the land use, the possibility of preventing damage and avoiding damage, the possibility of violation of public law regulations, and the progress of negotiations, the construction act is evaluated as an illegal and harmful act beyond the scope of legitimate exercise of rights (see, e.g., Supreme Court en banc Decision 2006Da35865, Apr. 17, 2008; 9Da628284, Apr. 28, 2008

In addition, whether the obstruction of light exceeds the limit under social norms shall be determined by comprehensively taking into account all the circumstances, such as the degree of damage, the nature of the damaged interest and the social evaluation thereof, the use of the damaged building, regional characteristics, the preference relationship of land use, the possibility of preventing damage and avoiding damage, the violation of public law regulations, and the progress of negotiations. In ordinary circumstances, where the sunlight hours are secured for more than two consecutive hours during the six hours between 9 A.M. and 3 P.M., or where the sunlight hours during the eight hours between 8 A.M. and 4 P.M., during the eight hours between 8 P.M. and 4 P.M., during the eight hours between 8 P.M. and 4 P.M., it shall not exceed the limit for responding, and in the case of the obstruction of light that does not belong to any of the two above, it shall be deemed that the limit for responding to light exceeds the limit (see, e.g., Supreme Court Decisions 2004Da54282, Oct. 28, 2004>

2) Determination on the cause of the claim

In light of the following circumstances, which can be seen by comprehensively considering the purport of the entire pleadings, i.e., comparison before and after the construction of the building of this case, the construction of the building of this case could not secure all hours of sunlighting and two hours of sunlighting and four hours of sunlighting due to the construction of the building of this case as shown in the attached Table 3, or further deepening the degree of the construction, the plaintiffs are deemed to have suffered infringement of the right to sunlight exceeding the tolerance limit under the social norms due to the construction of the building of this case. Thus, the defendant who constructed the building of this case is obliged to compensate the plaintiffs for damages incurred therefrom.

3) Judgment on the defendant's assertion or defense

A) Claim that the infringement of sunshine, etc. caused by the removed existing commercial buildings should be excluded.

The Defendant asserts that the damages should be recognized as to the degree of sunshine that existed prior to the new construction of the building of this case (hereinafter referred to as “the building of this case”) compared with the amount of sunshine and the amount of sunshine that occurred prior to the new construction of the building of this case. In a case where the building being damaged by sunshine has already been damaged by another existing building, or where the structure itself is difficult to secure sufficient sunshine due to the occurrence of sunshine, such as where the building being damaged by sunshine has already been damaged by another existing building, or where damaged building does not left or jutting out, it cannot be concluded that the damaged building of this case has been damaged by sunlight exceeding the limit of admission, even if it is always unable to secure sunlight above 20 hours due to the new construction of the new building, the degree of sunshine sunshine that occurred prior to the new construction of the new building, the degree of sunshine interference generated by the new building, the degree of the new construction of the new building resulting from the combination of the above two causes, the ratio of sunshine interference to 20 hours prior to the new construction of the new building and the new one.

However, the above precedents are related to cases where the damage is caused to sunshine by combining the two buildings and other causes. In this case, the building of this case is removed due to the new construction of the building of this case, and it does not cause any infringement on sunshine at present, and thus, the case does not coincide with the case. Furthermore, according to the appraisal result of January 18, 2021 as to appraiser M, the result of analyzing sunshine based on the building of this case is that "as a result of analyzing sunshine based on the building of this case, it is the same as the result of analyzing it as the site because the height of solar height is high." Therefore, the defendant's above assertion is without merit.

B) Plaintiff O who acquired ownership after the commencement of the instant building

The defendant asserts that the plaintiffO purchased the plaintiffs' building P head after the commencement of the new construction of the building of this case, and thereby, it cannot claim damages as long as the infringement of sunshine is acceptable.

According to the evidence examined prior to the commencement of the construction work by the plaintiff O, after the commencement of the construction work by the defendant

Although the acquisition of the Plaintiffs’ ownership of the Plaintiffs’ Building P on October 31, 2017 is recognized, even if the height or the number of floors of the instant building prior to the acquisition is publicly announced by the PlaintiffO, the shape or specific distance of the building is not publicly announced. As long as the structural construction of the instant building was not completed, it appears that the PlaintiffO could not accurately predict whether the right to enjoy sunshine is infringed due to the construction of the instant building at the time of the acquisition of the instant building, and the degree of the infringement. Moreover, there is no evidence to deem that the Plaintiff’s right to enjoy sunshine was infringed and the Plaintiff acquired the instant P title, or that the Plaintiff purchased the apartment of the market price reflecting the limitation of the right to enjoy sunshine. Accordingly, this part of the Defendant’s assertion is groundless.

C) Plaintiff Q who lost ownership

The defendant asserts that since the plaintiff Q completed the registration of ownership transfer on the apartment on January 14, 2020 due to the sale on November 9, 2019, the plaintiff Q cannot file a claim for damages unless it is currently the ownership holder.

However, if a building, etc. is completed or the external aggregate construction is completed, it may result in the construction act.

In addition to the statement in the evidence No. 4 in the above circumstances, Plaintiff Q already acquired the right to claim damages due to a tort on July 14, 2018 after completion of the construction of the outer framework of the building in this case, and there is no evidence to deem that the Defendant already acquired the right to claim damages due to the above tort at the time of the sale, and there is no evidence to deem that the Defendant already acquired the right to claim damages due to the above tort at that time. Thus, the above assertion by the Defendant is without merit.

D) The assertion that there is no loss due to the market increase.

The defendant, because the old building of this case was worn out, the neighboring area is well-congested.

The appraisal result argues that there was a decline in the price of the apartment, and that there was no real property damage, such as the removal of the building and the new construction of the building in this case, which led to the increase in the value of the building of the plaintiffs by making many residential factors favorable to the hospital or convenience facilities by the majority. The appraisal result that the market value prior to the infringement according to the appraisal statement sold by the plaintiff Q Q was 744,60,000 won, or that the price of the apartment was reduced by the plaintiff Q Q sold it to the 795,00,000 won, and that there was no difference between the rebuilding expectation and the T-Dong, which did not cause an infringement of the apartment price.

However, according to the appraiser N's appraisal result, the above appraiser infringes the right to enjoy the sunshine of this case.

At the time of calculating the market price decline portion due to the tort, it appears that the overall circumstances, such as the use of the building of this case, the market price of apartment buildings in neighboring areas, etc., are considered to have been taken into account, and even if the reduced value was considerably compensated due to the unexpected circumstances, such as the price increase due to the sudden change in the real estate market after the tort, and the market price increase due to reconstruction expectation, it cannot be deemed that the liability for damages to the property already infringed has been extinguished. Therefore,

(b) Damage caused by infringement of the right of mutual assistance.

1) Relevant legal principles

In a lawsuit seeking infringement of living benefits, such as reduction in the distance of closure or pressure, etc., caused by the construction of a neighboring building, etc. on the land, whether such infringement is unlawful beyond the generally accepted level under social norms. Whether it is unlawful should be determined by comprehensively taking into account not only the so-called “marradation rate of the area, other than the harming building,” which indicates the rate of the total area of the windows when seen the outside through the windows of the living room or windows of the damaged building, but also the so-called “marance rate of view” indicating the rate of the area where the harming the outside view of the damaged building, but also the degree and nature of infringement, the height and height of the harming building between the damaged building and the harming building and the height thereof, including the overall structure of the damaged building, the location and direction of the window and the living room, etc., whether regulations under the construction law were violated, and whether the 20th anniversary of the total area of the damaged building, including the entire area of the building in which the harming building is located, and how the perpetrator’s were 20.

2) Determination

A) As seen earlier, it is recognized that the construction of the instant building by the construction of the building in question has decreased from at least 3% to 22% due to the construction of the building in question, such as attached Table 4,000.

B) However, in light of the following circumstances, the aforementioned facts and the evidence submitted by the plaintiffs alone are insufficient to recognize that the construction of the building of this case causes infringement of the right to mutual assistance due to the loss of open view or pressure beyond the generally accepted limit under the social norms, and there is no other evidence to support this otherwise. Thus, this part of the plaintiffs' assertion is without merit without need to further examine.

① The so-called view obstruction rate is a numerical value indicating the area ratio of the window of a harming building, other than the harming building, when showing the outside through the window of the living room or window of the damaged building, while displaying a certain distance from the window of the living room or window of the damaged building. The so-called view obstruction rate is a numerical value indicating the area ratio of the harming the outside view of the damaged building. If the separation distance between the damaged building and the damaged building and the height of the damaged building and the ratio between the front area of the damaged building, regardless of such separation distance, are always maintained at all times. However, even in such case, the degree of closure reduction or pressure reduction due to the view obstruction rate or view impairment rate cannot be seen as reflecting the degree of closure or pressure at all times in the Plaintiffs building, which is the damaged building.

② The building of the Plaintiffs also at least the original minimum with other Dongs within the same apartment complex.

It seems that only had been constructed with a separation distance, and the defendant seems to have complied with all the relevant provisions of public law, such as the relevant provisions of the Building Act that maintain a certain distance from the boundary of neighboring land in the construction of the building in this case.

③ According to the analysis sheet of changes in the attached rate of 4,00, the view infringement rate of the Plaintiffs’ buildings from the beginning of the year.

Since this height has been high, the increase in the view infringement rate due to the construction of the building of this case is not much significant. In some households, the restriction on the view infringement rate due to the construction of the building of this case is relatively low, while the view infringement rate from about 69% to 91% is increased due to the construction of the building of this case, it seems to be due to the remote circumstances that did not exist in the vicinity of the building of this case.

④ In the surrounding areas where the building of this case and the building of this case are located, apartment houses are concentrated or commercial facilities are located. It is difficult to see that the arrangement relationship between the building of this case and the building of this case is an exceptional part of the area. In light of the location, size, etc. of the building of this case, it is difficult to see that the Plaintiffs could not have anticipated that the building of this case, such as the building of this case, may have been closed and opened due to their surrounding areas. Moreover, it is difficult to find any other way to significantly improve the Plaintiffs’ closure and pressure while constructing the building of this case’s size.

5. Scope of liability for damages

(a) Property damage caused by infringement of the right to sunshine;

(i) The amount equivalent to the market fall;

The property damage suffered by the plaintiffs due to the infringement of the right of sunshine is the amount corresponding to the decline in the market price of the plaintiffs' building. In full view of the aforementioned evidence and the purport of the whole pleadings, the exchange value of the plaintiffs' building can be recognized as the fact that the exchange value of the plaintiffs' building decreased by the amount corresponding to each of the items in the "market price decline"

2) Limitation on liability

Meanwhile, considering the following circumstances that can be acknowledged in addition to the purport of the entire pleadings, it is reasonable to limit the defendant's liability for damages against the plaintiffs to 50% of the property damage amount under the principle of equity. However, if the infringed right to sunlight is more severe than 1 hour in total, it is reasonable to limit the damage amount to 70% of the property damage amount as claimed by the plaintiffs.

① In principle, land owners have the power to freely use, profit from, and dispose of the land owned within the scope of ownership, and such ownership should be protected as far as possible. In addition, protection of private property and protection of environmental interests are important values that require rational harmony. Therefore, unless there are circumstances to deem that the Defendant violated the construction-related Acts and subordinate statutes while constructing the instant building, only the Plaintiffs’ environmental benefit or living benefit in the instant case may not be absolutely guaranteed.

② Since many people reside in a narrow and limited space of national land, the public aspect of efficient distribution and use of land, the supply of which is restricted, cannot be considered. From this perspective, it is difficult for either party to absolutely guarantee sunshine benefits, etc.

③ The instant building is located in the central place aesthetic district and is expected to be constructed up to 14 floors, and the instant building appears to have been constructed in compliance with the regulations required by the relevant statutes, etc., and it was possible to construct up to 14 floors by taking into account the Plaintiffs.

④ In light of the current state around the building site (the commercial area where the building of this case is located on the side of the opposite line), the Plaintiffs seems to have sufficiently anticipated the construction of a high-rise building on the site of the building of this case owned by another person.

⑤ However, the market price of the Plaintiffs’ buildings has increased rapidly.

6. Parts G through U, V through W among the plaintiffs' buildings (attached Form 5 Nos 13 through 22)

( Sector) In the case of E Dong building, considerable sunshine was already infringed by E Dong building, and the additional sunshine reduction hours due to the construction of the instant building are 53 to 28 minutes.

7) In the case of a window and O, the building was purchased after the commencement of the new construction of the building of this case. It seems that the Cdong and Cdong are located near the building of this case and on the lowest floor, and thus, it could have anticipated that the sunshine infringement could occur.

(b) Mental damage;

1) In general, in a case where a property right is infringed due to a tort of another person, the mental suffering shall be deemed to have been recovered from the compensation for the property damage, barring any special circumstance, and in a case where a property damage is not recoverable from the sole compensation for the property damage, the consolation money may be recognized (see, e.g., Supreme Court Decisions 96Da31574, Nov. 26, 1996; 96Da36159, Feb. 14, 1997; 96Da38971, Jul. 10, 198).

2) The right to enjoy sunshine is very important factor in running a pleasant residential environment. As long as the infringement of the right to enjoy sunshine as seen earlier due to the construction of a new building by the Defendant, the Plaintiffs, residents of the Plaintiffs, appears to have suffered considerable mental pain in their daily lives, separate from property damage, and it seems that the compensation for property damage recognized earlier is not fully cured (However, as long as the infringement of the right to enjoy sunshine is not illegal because it does not exceed the limit of admission, the part claiming compensation for consolation money due to the infringement of the right to enjoy the Incheon Mutual Aid Network is without merit).

Furthermore, in relation to the amount of consolation money, the Plaintiffs’ consolation money shall be determined by taking into account all the circumstances revealed in the proceedings of the present case, such as the degree of infringement in the existing environment and the degree of infringement due to the construction of the building of this case.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiffs the amount of money stated in the "amount of money cited in the attached Form 5" as compensation for property damage and mental damage, and to pay 5% per annum as stipulated in the Civil Act and 12% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, which is the date of the completion of the external framework construction of the building of this case, which is the date of tort.

6. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges

Chief Judge of the Supreme Court;

Judges Lee Ho-soo

Judges Jeong Jeong-hee

Note tin

1) The Plaintiff F acquired the right to claim damages against the Defendant due to the infringement of the right to enjoy sunshine of the above building from H and I, a co-owner of the building B G, and the Plaintiff J acquired the right to claim damages as above from L, a remaining co-owner, as the one-half share of the building B, as the remainder of the co-owner. On December 12, 2019, the said Plaintiffs notified the Defendant of the assignment of the above right to claim.