항공기소음에 대한 유지청구의 인용여부

Abstract

This study attempts or reviews the restructuring of the meaning of imission, which is related to the balancing of interests between imission and defendant’s facility or infringing activities, when judging the tolerance limit concerning public opinion about the legal grounds for injunction, approval of damage concerning the characteristics of noise pollution, causation, judgment of illegality, by referring to the cases regarding admission possibility of injunction on aircraft noise. The following is the author’s view on the possibility of admission of injunction on aircraft noise. When it comes to securing the rights contents assigned to those who have the claim according to the law, especially to invulnerability of the rights, prior deterrence against expected infringing activity could be approved without waiting for compensation for damages or ex-post recovery, if the risk of infringing on one’s rights is recognized, even though the rights are not an absolute right or absolute interest such as real right and personal right. There is no difference real right or personal right and other rights. However, the prior deterrence, as opposed to compensation for damages, causes significant restrictions on the freedom of action of the actor as it deters expected infringing activities in advance. Thus, risk of infringing on the rights of the victim alone cannot justify the deterrence of future activity when the deterrence causes restrictions on freedom of thoughts, belief, and expression. The right and interest of the victim conflicts with that of the inflictor, which is the freedom of action; however, putting an emphasis on the protection of the victim’s right is not proper and the rights and interests of both sides should be balanced. As such, a heavy restriction that is bigger than the freedom of action is imposed on the prior deterrence. So the social meaning of the inflictor’s freedom of action should be explored and the ground for justifying the restriction should be suggested, and this is more explicit than in the cases of compensation for damages. In addition, it is more strictly required than in the cases of compensation for damages that the restriction on the inflictor’s freedom of action should be minimized. However, balancing the rights and interests of both sides is not limited to cases where the right not to be infringed upon is the real right or personal right. It is a penalty imposed whenever deterrence against the infringement of right is a problem. Publicness such as imission and social usefulness that the action of inflictor has should be considered, because deterrence restricts the social and economic activities of the inflictor in advance -- even directly. Considering the influence of the restriction that prior deterrence has on the inflictor’s freedom of action, prior deterrence is justified only when there is a desperate risk of damage and obvious and unrecoverable damage caused by infringement and when deterrence is the only and final method in cases where the damage is enormously bigger than the disadvantage imposed on the counterpart.