일조침해에 따른 위자료청구권과 소멸시효 - 대법원 2008. 4. 17.선고 2006다35865판결관련 - (Compensation and Extinctive Prescription of the Infringement of the Sunshine Right)

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초록

This paper treats a right to enjoy sunshine and short time extinctive prescription in relation to the South Korea's Supreme Court case 2006다35865judgement. In case of a building keeps the sun off close neighborhood, the neighborhood is damaged of shade. In the case, a huge apartment building kept the sun off 49 peoples(owners or hireres). So, the damaged 49 people instituted a suit against the shading building's owner claiming for loss of property and solatium. But the suit, 3 years had passed since the building's construction finished. Points at issue were "Shading building construction is unlawful act? If unlawful act, continuous shading itself is continuously unlawful?The time when the building construction finished, the unlawful act is same finished, so the suit should be rejected because of 3 years short time extinctive prescription?". The Supreme Court's judgement concluded that "All loss of life and property, solatium related to the building's shade had passed 3 years short time extinctive prescription. So, the case should be reject". Generally, a right to enjoy the sunshine in South Korea and Japan is unique and stronger than that of U.S.A., British, Europe, Swiss, German, etc. But the judgement is exceptional. This paper criticizes the judgement's problems.

영어초록

This paper treats a right to enjoy sunshine and short time extinctive prescription in relation to the South Korea's Supreme Court case 2006다35865judgement. In case of a building keeps the sun off close neighborhood, the neighborhood is damaged of shade. In the case, a huge apartment building kept the sun off 49 peoples(owners or hireres). So, the damaged 49 people instituted a suit against the shading building's owner claiming for loss of property and solatium. But the suit, 3 years had passed since the building's construction finished. Points at issue were "Shading building construction is unlawful act? If unlawful act, continuous shading itself is continuously unlawful?The time when the building construction finished, the unlawful act is same finished, so the suit should be rejected because of 3 years short time extinctive prescription?". The Supreme Court's judgement concluded that "All loss of life and property, solatium related to the building's shade had passed 3 years short time extinctive prescription. So, the case should be reject". Generally, a right to enjoy the sunshine in South Korea and Japan is unique and stronger than that of U.S.A., British, Europe, Swiss, German, etc. But the judgement is exceptional. This paper criticizes the judgement's problems.

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