고속도로소음에 대한 유지청구에서의 위법성판단 - 대법원 2015. 9. 24. 선고 2011다91784 판결 -

Abstract

As regards the theory of endurance limit, a factor in determining illegality in an environmental infringement, Japan theorized about the illegality stage. According to the theory, an injunction against an environmental infringement may be accepted when the illegality of environmental infringement is regarded as more serious than cases where a claim for damages is accepted. The theory of illegality stage is propounded for the following reasons: as compared to a claim for damages, an injunction can be a deathblow to a company, and the form of action can be a factor in determining illegality, and thus the difference in illegality between two can be acknowledged. Referring to a precedent of Japan, the theory of illegality stage was accepted for reason of the publicness of a road, and the result was that a claim for damages was accepted but an injunction was dismissed despite the same case of environmental infringement. In South Korea, there are contrasting views regarding the theory of illegality stage; contrary to a positive view, a negative view points out that the determination of illegality can be different according to the remedy, notwithstanding the same action. An additional view is that Article 217 of Civil Code can be applied to such problems, and that there is no need to take the theory of illegality stage. With regard to this case, i.e., an injunction against highway noise, the Supreme Court emphasized a strict determination of whether it exceeds the endurance limit, unlike a claim for damages; specifically, it is the first time the Supreme Court accepted the theory of illegality stage. Clause 2 of Article 217 in Korea’s Civil Code originated from Article 906 of Germany’s Civil Code, however, stipulates that the victim has the duty of patience in cases where an environmental infringement is within the ‘conventional use of land.’ Therefore, this case can be solved by determination of whether the highway noise is within the conventional use of land, without applying the theory of illegality stage. Likewise, in terms of comparison, Article 906 of Germany’s Civil Code regards highway noises as an infringement within the locationally conventional use of land and thus that the victim has the duty of patience.