[1] The standard for determining whether the allocation of the burden of proof of causation and the degree of harm exceeds the “limit of reference” in a pollution lawsuit

[2] The case where the appraiser's appraisal result can be rejected

[3] The case affirming the judgment below holding that in case where Gap fishing village fraternity et al. claimed damages against Eul et al. due to suspended material and agricultural chemicals leaked at the construction site of a tourism complex development project and claimed damages against Eul et al., the evidence submitted by Gap fishing village fraternity et al., such as the statement of "written appraisal of fishery damage caused by the construction of a tourism complex", the appraisal result by the appraiser of the first instance court, and the fact-finding results on the appraiser Gap et al., were leaked beyond the limit of attendance at the construction site, or where agrochemicals were leaked

[1] Article 750 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 202 of the Civil Procedure Act / [3] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act

[1] Supreme Court Decision 201Da911661 Decided October 11, 2013, Supreme Court Decision 2011Da91784 Decided September 24, 2015 (Gong2015Ha, 1596) / [2] Supreme Court Decision 2007Da74560 Decided November 25, 2010 (Gong201Sang, 4608, 84615, 8462, 84639 Decided January 12, 2012 (Gong2012Sang, 203)

Plaintiff 1 and 7 others

Plaintiff 9 and seven others (Law Firm Southern-do, Attorneys Go Jae-sik et al., Counsel for the plaintiff-appellant)

Korea National Tourism Organization and one other (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2011Na6570 decided August 22, 2014

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

The grounds of appeal are examined.

1. Generally, in a claim for damages caused by a tort, the perpetrator bears the burden of proving the causal relationship between the perpetrator’s harmful act, the victim’s occurrence, and the harmful act and the victim’s occurrence. However, in a claim for damages due to air pollution or water pollution, the request for scientificly strict certification of causal relationship may result in the victim’s refusal of judicial relief due to pollution. On the other hand, there are many cases where the perpetrator’s investigation into the cause is considerably more easy than the victim rather than the victim, and the perpetrator is likely to conceal the cause of the damage. As such, if the perpetrator discharges any harmful substance and caused the damage by arrival of the damaged object, the causal relationship between the harmful act and the victim’s occurrence may be acknowledged unless the perpetrator proves that it was groundless. However, in this case, at least, the perpetrator discharges any harmful material, the degree of harm exceeds the generally accepted limit (hereinafter referred to as “limit of presence”), the degree of harm to the victim’s occurrence of harm, the public nature and public nature of the damaged object and the burden of proof of the victim’s occurrence of damage should be determined based on 1614.

Meanwhile, the appraiser’s appraisal result shall be respected unless there are special circumstances, but where there are significant errors in the appraisal method, such as serious errors in the appraisal process, against the empirical rule or in the absence of rationality, such appraisal method may be rejected (see, e.g., Supreme Court Decisions 2007Da74560, Nov. 25, 2010; 2009Da84608, Jan. 12, 2012; 84615, 84615, 84622, 84639, etc.).

2. After finding the facts as stated in its holding, the lower court determined that ① the appraisal report on fishery damage caused by the construction of ○○○ Tourism Complex (Evidence No. 17) and the appraisal of the appraiser at the first instance court did not properly reflect the Defendants’ protective measures taken to prevent the spread of earth and sand and similar oil that were leaked at the construction site of the instant development project, ② the scope and period of inflow into the fishing zone and farming ground of this case; ② the quantity of oil inflows, which were used as the above appraisal report, appears to be excessively strict according to the materials of other agencies; ③ the Defendants’ appraisal of the relevant pesticide at the same time as the survey site, including the possibility that the Plaintiff’s appraisal of the relevant pesticide products were discharged from the ○○○○ Tourism Complex; ④ the appraisal of the relevant pesticide at the same time as the survey site, and the possibility that the appraisal of the relevant pesticide products were discharged from the survey site to the extent that the appraisal of the relevant pesticide products and the relevant pesticide products were not contained in the survey site of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. Contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the reference of illegality in tort, and causation in pollution litigation due to water pollution,

3. Therefore, all appeals 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 Kim Jae-hyung (Presiding Justice)