항공기 비행에 의한 피해와 민사적 쟁점-대법원 2016. 11. 10 선고 2013다71098 판결

Abstract

This article is the study on the recent cases involving aircraft flights (the Supreme Court Decision 2013Da71098 Decided November 10, 2013). In this case, helicopters to and from nearby airfields caused damage to the use of nearby land. Therefore the landowner sought to ban on aircraft passing over his own land and sought compensation for damages. The decision rejected the request to seek to ban as opposed to the appeal, but acknowledged damages. Since the plaintiff did not simply seek damages, he filed the complaint on the basis of ownership (not on the violation of an environmental right). In the process of ruling it, the Supreme Court judged on the plaintiff's claim based on the "the Tolerable Range theory" commonly used in cases of nuisance. The Supreme Court, however, differed on specific criteria for a flight ban and damages claim, and it seems reasonable to differ on the criteria for recognizing illegality to admit such remedies. This conclusion of the Supreme Court can also be accepted from the view of Law and Economics. Regarding compensation for damages, it can be said that the flight of aircraft constituted tort, and the Supreme Court provided the criteria for calculating the amount. That is to say, the judge's active exercise of the right to make clear(“Aufklärungsrecht”) is required, and the damages are actually calculated through him. In the future, the scope of ownership and the way to guarantee it is thought to be discussed more frequently as multiple flying objects such as drones, flying cars are developed and commercialized. This case is expected to serve as a constant guide in resolving such cases.