日照權 侵害에서의 受忍限度의 判斷 (Review of Limit of Endurance of Sunlight Infringements)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 25권 / 4호 / 223 ~ 262페이지
· 저자명 : 최창렬

초록

Sunshine not only maintains temperature in a house and a constant brightness but also exerts germicidal effect and keeps biological rhythms through ultraviolet rays.
Such sunlight was what could be enjoyed from nature without cost, with the advent of overcrowded high-rise buildings according to the progress of industrialization and urbanization, cases some cases have got to violate someone else's right to enjoy sunshine. A right to enjoy sunlight through direct light of the sun is called, a right to enjoy sunshine, which has increasingly been important in order to enjoy a pleasant, healthy life environment these days.
Unlike other environmental pollution caused by active intrusion of noise, vibration, odor etc, the infringement of a right to enjoy sunlight a right to enjoy sunlight is a passive infringement occurring by interception of sunlight coming from the sun. also compared to that environmental pollution requires a great need for relief, the infringement of a right to enjoy sunlight results from buildings etc, so once an infringement occurs, it has characteristics that it continues on a long-term basis and is difficult to get rid of socially and economically. And environmental pollution takes place over an extensive area, so it is hard to specify the victim and the inflicter, while an infringement of sunlight arises at a narrow area, so it is easy to specify the victim and the inflicter, mainly occurs out of a small-scale adjoining dispute.
Determining whether infringing a right to enjoy sunlight is illegal is based on a theory of unbearable pain seeing that the victim should accept the damage to some extent. In judging the bearable limit in infringement of a right to enjoy sunlight, the most important determining factor is how many hours a day infringement of sunlight occurs in a living space of the damaged building based on the winter solstice day. And a direct regulatory standard in the Building Act was laid down objectively and uniformly to protect public rights, but it becomes a basic standard to decide whether there is infringement of a right to enjoy sunlight under private law. And regional features such as if the relevant building belongs to a residential area or a commercial area become a crucial factor to determine a limit of unbearable pain. In addition, whether the use of the inflicting building is for a vital one in the public interest is a judgement factor of limit of acceptability.
In case of an infringement of sunlight by combined shadow giving rise to infringement of sunlight at more than two buildings, it is necessary to regulate the interests of the victim and the existing landlord and the new building owner. In this case, if it was in the endurable limit at the time of constructing act of the existing building, any damage occurring from the constructing act of the existing building cannot increase the responsibility of the existing landlord due to severance of causal relationship. Thus, the new landlord is liable for any damages resulting from infringement of sunlight in principle. Provided however, infringement of the existing building has already occurred due to the existing building, but the victim did not pursue liability portion, so it can be seen that the victim took (undertook) a part of them that the new landlord and the victim should share the damages.

영어초록

Sunshine not only maintains temperature in a house and a constant brightness but also exerts germicidal effect and keeps biological rhythms through ultraviolet rays.
Such sunlight was what could be enjoyed from nature without cost, with the advent of overcrowded high-rise buildings according to the progress of industrialization and urbanization, cases some cases have got to violate someone else's right to enjoy sunshine. A right to enjoy sunlight through direct light of the sun is called, a right to enjoy sunshine, which has increasingly been important in order to enjoy a pleasant, healthy life environment these days.
Unlike other environmental pollution caused by active intrusion of noise, vibration, odor etc, the infringement of a right to enjoy sunlight a right to enjoy sunlight is a passive infringement occurring by interception of sunlight coming from the sun. also compared to that environmental pollution requires a great need for relief, the infringement of a right to enjoy sunlight results from buildings etc, so once an infringement occurs, it has characteristics that it continues on a long-term basis and is difficult to get rid of socially and economically. And environmental pollution takes place over an extensive area, so it is hard to specify the victim and the inflicter, while an infringement of sunlight arises at a narrow area, so it is easy to specify the victim and the inflicter, mainly occurs out of a small-scale adjoining dispute.
Determining whether infringing a right to enjoy sunlight is illegal is based on a theory of unbearable pain seeing that the victim should accept the damage to some extent. In judging the bearable limit in infringement of a right to enjoy sunlight, the most important determining factor is how many hours a day infringement of sunlight occurs in a living space of the damaged building based on the winter solstice day. And a direct regulatory standard in the Building Act was laid down objectively and uniformly to protect public rights, but it becomes a basic standard to decide whether there is infringement of a right to enjoy sunlight under private law. And regional features such as if the relevant building belongs to a residential area or a commercial area become a crucial factor to determine a limit of unbearable pain. In addition, whether the use of the inflicting building is for a vital one in the public interest is a judgement factor of limit of acceptability.
In case of an infringement of sunlight by combined shadow giving rise to infringement of sunlight at more than two buildings, it is necessary to regulate the interests of the victim and the existing landlord and the new building owner. In this case, if it was in the endurable limit at the time of constructing act of the existing building, any damage occurring from the constructing act of the existing building cannot increase the responsibility of the existing landlord due to severance of causal relationship. Thus, the new landlord is liable for any damages resulting from infringement of sunlight in principle. Provided however, infringement of the existing building has already occurred due to the existing building, but the victim did not pursue liability portion, so it can be seen that the victim took (undertook) a part of them that the new landlord and the victim should share the damages.

참고자료

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