일조권의 침해와 수인한도- 공ㆍ사법간 조화를 위한 법정책적 고찰을 중심으로 -

Abstract

Benefits of light that land owners have been enjoying from before shall be legally protected, if it is acknowledged to have an objective beneficial value for life. Here, the phrase "land owners," who have been enjoying the benefits of light as an objective beneficial value for life, refers to residents, such as a land owner, a building owner, claimant on superficies, a person with a right to lease on a deposit basis, or a lessee. A person merely using land and buildings temporarily cannot be a subject who enjoys the benefits of the light. We regulate the architecture by the building code for protecting benefits of light and when benefits of light has been violated, we can get relief by the private law about the generally accepted limit. The obstruction of light means the disadvantages arising from being blocked from a direct ray of light. If the degree of that interruption exceeds the generally accepted tolerance limits in light of social norms, then the obstruction of light can be viewed as an unlawful and harmful act as a matter of private law. According to the supreme court precedents about the generally accepted limit, the degree of such blockage of must go beyond the generally accepted limit from socially acceptable ideas to be considered a judicially illegal harmful act that goes beyond the scope of a justifiable exercise of a right. Whether the act of blocking sunlight has gone beyond the generally accepted limit from socially acceptable ideas or not shall be judged taking into consideration the totality of the circumstances including, but not limited to, the degree of the damages, the nature of the damaged benefit and the social assessment about it, the usage of the harming building, characteristics of the region, the relationship before and after the use of the land, the probability of prevention of harming and avoidance of the harm, whether the regulations under public law has been violated or not, and the progress of negotiation, whether a harmed building is not able to secure a total of four hours or more of sunlight on the day of winter solstice between 8 a.m. and 4 p.m. as a result of the construction of the harming building and is not able to secure sunlight for two hours in a row or more on the day of winter solstice between 9 a.m. and 4 p.m. or not. But under public law, it is only limited by the distance between buildings for protecting benefits of light. Consequently, there is a difference between public law and private law for protection of the benefits of light or the right to sunshine. In light of the Article 35 (1) of the Constitution stipulating that all citizens shall have the right to a healthy and pleasant environment, an unlawful obstruction of light has the nature of infringement upon not only property rights, but also personal rights to live in a healthy and pleasant environment. Therefore, we should reconcile the regulations under public law with the standard of private law established by the supreme court precedents for protection of the benefits of light or the right to sunshine.