공동주택의 층간소음침해와 방지청구권의 법리

Abstract

Once a dispute of noise complaint occurs, every apartment complex may seek for a solution pursuant to the noise complaint issues from upstairs neighbor autonomically prepared, or it may plan a alternative solution like conditions of environmental disputes. In addition, a final and definite solution to a dispute will be a civil remedy through the court. If an infringement of noise complaint issue from upstairs neighbor occurs, the civil solution is a claim of preventing noise from upstairs and a method of claiming damages due to noise complaint from upstairs. As the legal ground of the claim of prevention, a claim of eliminating disturbance based on Article 214, Civil Code may be exercised, but they may exercise a claim of appropriate measure in Article 217, Civil Code which can be said to be the provision of a special law and demand an active measure to block noise. For example, they include active measures like installation of a special soundproofing device, execution of a reinforced work enlarging the thickness of a floor or a wall and the vocal operation of a pet dog barking loud. And to exercise the claim of appropriate measure in Article 217, Civil Code, the use of the apartment house should be an intervention surpassing its common use and any disturbance below that extent should be accepted pursuant to Paragraph 2, Article 217, Civil Code. If the duty of endurance is not accepted, then a claim of damages due to a tort may be exercised, it can be seen to be admitted even if it is below the duty of endurance. Since the limit of endurance of the claim of appropriate measure in Article 217, Civil Code having effects of removing the results of a infringing person’s act or preparing for an active blocking device should be a higher level than the limit of endurance to judge the illegality of a claim of damages. Concerning noise complaint from upstairs neighbor, environmental standards on noise regulation have been provided, which cannot be seen only as necessary condition, not a sufficient condition as an objective judgement factor in determining limit of endurance. In general, environmental standards on noise regulation should be regarded as a standard to judge limit of endurance as the judgment factor of illegality in a claim of damages and the limit of endurance to exercise the claim of damages in Article 217, Civil Code should be a higher level than environmental standards on noise regulation. In addition, if any noise complaint beyond the limit of endurance occurring in the common use of apartment house occurs, but the possibility of blocking such disturbance is not expected, then a claim of regulative compensation needs to be accepted. By the theory of analysis of current law, it may be based on the claim of appropriate measure in paragraph 1, Article 217, Civil , but it will be reasonable to accept that through the legal revision like Revision Proposal of Civil Code in 2014.