인접지 소유자간의 이익형량에 관한 검토: 경계침범건축과 조망방해를 중심으로

Abstract

In South Korea, the Civil Code has no direct provision on legal measures against land border infringement by new structure building and prospect right infringement in adjacent area. In the cases of structural construction infringing adjacent land border, the Civil Code does not differentiate legal measures against innocent building owners from those against intentional building owners. The absence of awareness on such separation disturbs consistent law application in dealing with border-infringing structures. Whether to acknowledge the he right to claim disturbance removal about such border-infringing structures is determined by considering the objective and subjective requirements on right abuse. However, with respect to border-infringing structures for intentional cause of material fault, it is deemed more appropriate for the sense of justice to acknowledge the removal of such infringement no matter how small area of land is infringed. Although the act of building a structure on one’s own land is a just right exercise, no one could deny that, given the physical nature of land continuity, such a structure should be constructed in consideration of the landscape with other structures in the neighborhood. The right of prospect has a very weak ground for legal protection. It is because, even though the requirements are met to recognize the prospect right in a legal sense and its infringement is acknowledged, the corresponding remedies are not clear. On the other hand, if the prospect right is to be exercised to limit others’ land use, such could unfairly restrict other people’s land ownership. In this sense, the judicial and public provision to limit the acts of new building construction should be arranged for the purpose of reasonably adjusting conflicting interests with the adjacent area owners.