일조권 침해에 있어서의 수인한도

Abstract

In modern societies where buildings get higher and more compact, the matter of the sunshine interruption is sometimes unavoidable depending on the extent and all the sunshine interruption shouldn't be regarded as the infringement of the right to enjoy sunshine. The sunshine interruption among the neighborhood can't help being allowed to some extent. There are a variety of opinions about the legal nature of the right to enjoy sunshine. Among them, the theory of living profit enjoyment is considered as appropriate, which is based on Article 217 of the Civil Law. So when the infringement of the right to enjoy sunshine is beyond the limit of admission of Article 217 of the Civil Law, a sufferer can claim either the proper measure, namely, the interference rejection and the interference prevention or damages based on this article. It's true that the working-level circles tend to decide whether the sunshine interruption is regarded as illegality or not, or the claim for interference rejection or prevention is accepted or not on the basis of the limit of admission. In the infringement of the right to enjoy sunshine, it's difficult to quantify other factors except for the degree of the sunshine interruption among the factors deciding the limit of admission. Therefore, in order to settle the dispute of the right to enjoy sunshine effectively, a criterion deciding the limit of admission should be made by providing duration of sunshine in the building act more specifically and clearly in consideration of regional characteristics. If the degree of the sunshine interruption is beyond the limit of admission, the suffer can claim the damages or indemnity whose provision is based on Article 217 of the Civil Law. But the problem of damages finally relies on the code of tort because nothing is not mentioned on the damages or indemnity of a suffer in this provision. In future it's necessary to find out a way of utilizing this act actively through legislative proceedings in applying the damages or indemnity of a suffer. The completed building demolition not only causes a great deal of damage to a harmer but also is undesirable in the aspect of public good. So it's necessary that the permission of the completed building demolition should be somewhat strictly restricted, compared to damages. This means a difference between the claim for interference rejection and the claim for damages from the standpoint of the standard of the limit of admission. In the problem of combined shadow, the cases where builders of a harmful building assume incomplete joint liability as a joint tort doer are as follows: more than two harmful buildings are relevant each other, and generally result in the sunshine interruption exceeding the limit of admission against a damaged building. In the case that a joint tort between an existing and a new building is not approved because the latter was built at a distance of time after the former had been constructed, and the sunshine interruption by only an existing building did not exceed the limit of admission, the existing building is not responsible at all even if the result of combined shadow after the construction of the new building exceeds the limit of admission. There are several opinions in judging the limit of admission of a new building when there is the sunshine interruption already by an existing building and the interruption becomes more excessive due to a new building. Out of them a third opinion is thought of as appropriate that a sufferer and a harmer of a new building share the expenses of the sunshine infringement by an existing building with each other. In this case the concrete proportion of burden should be calculated on the basis of the degree of a new building's sunshine interruption.