지역개발과 일조권-대법원 2008.12.24. 선고 2008다41499 판결과 관련하여-

Abstract

Currently, environmental issues such as ‘right of light’ are considered as an essential condition for survival, instead of an additional cost for the growth. Subsequently, a legal protection of the environmental benefits has become a significant factor in resolving environmental disputes. In the wake of the increasing social awareness for the right of light, individual freedom to build and the right of light of the local residents often clash, hence the accumulation of the related precedents. However there is a lack of appropriate measure to resolve such conflicts. It is largely due to the misjudgement and mismanagement in conventional legal reasoning, interpretation, and application regarding permission, and in a project planning phase for the environmental conservation and urban planning. The aim of this study is to review a general theory related with the infringement of the right of light and relief system thereof, and to reinterpret a legal reasoning of the building permit which is the most relevant law to the right of light. It is also to reinforce a moderation function of the public versus private benefits in administration, based on an ‘administrative action with double effect.’ Furthermore a discretional action is also examined in this study. Based on the environment right primacy, expansion of a standing to sue should be emphasized in ‘Nachbarklage’ (inter-communal dispute) as a third party liability. Due to the limit of applying a post relief system for the environmental infringement such as the right of light, procedural legal regulation and legislative prevention as a preemptive control should be reinforced. In addition it is recommended that the supreme court adopt a forward leaning legal interpretation to appropriately handle environmental disputes including the right of light.