미국법상 불법방해(Nuisance)와 유지청구 - 수인한도론과 위법성단계설을 중심으로 -

Abstract

This Article is to discuss nuisance and injunctive relief under the U.S. law. In particular, it takes an in-depth look into how the balancing approach applies in nuisance cases, along with the relationship between injunctions and monetary damages. Both private and public nuisance form the basis for the granting of injunctive relief. They are defined as a substantial and unreasonable interference with the use and enjoyment of land or a right common to the public. The interference in question is determined as unreasonable where the gravity of the harm outweighs the utility of the actor's conduct, and the reviewing court must consider the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied in deciding to grant or withhold an injunction. This is termed as a balancing approach. The factors to be considered include: (a) The extent and character of the harm involved; (b) the social value that the law attaches to the primary purpose of the conduct; (c) the suitability of the conduct to the character of the locality; (d) the impracticability of preventing or avoiding the invasion, etc. The balancing approach tends to disappear at the liability determination stage, as far as significant or severe harm is concerned, while it plays a prominent role at the remedial stage. The U.S. courts have made great efforts to strike a proper balance between public interests, represented by the tortfeasor’s conduct, and the victim’s private interests. If the impracticability of preventing or avoiding the invasion is found, they tends to refuse to grant injunctive relief with exceptional cases, in which severe harm to personal life and safety is involved. On the other hand, the U.S. courts have issued a variety of injunctions by exercising equitable discretion where they found technically and economically feasible preventive measures to be existent. These preventive measures are divided into operational changes, best pollution control technologies, and conditional injunctions. The conception of private nuisance and the operation of the balancing approach are very similar to the statutory and theoretical underpinnings of Korean civil law with regard to injunctive relief. The Korean judiciary needs to accept the relevant U.S. case law as important interpretive guidance in that the U.S. courts have developed fine-tuned and detailed decisional standards on whether private nuisance is found, and the granting of an injunction can be justified in light of the equities of the parties. Alternatively, the Korean Civil Code needs to be revised to embody objective standards for balancing. This can be a viable solution becaue it enhances predictability. The German approach, as well as the U.S. approach, must be closely examined as a legislative model or interpretive guidance.