민사소송을 통한 환경오염피해 구제의 현실과 한계- 소음피해로 인한 소송을 중심으로 -

Abstract

In litigations involving nuisance claims, case laws and academic theories generally applied are a theory of unbearable level of discomfort, a theory of functional defect, focus on environmental standards in public law, unspecific nonfeasance claim, illegality stage theory, and the doctrine of coming to a nuisance. These theories were established by Japanese doctrine and case law, which have led to recent Korean judicial decisions that managers of facilities should take responsibility for and compensate damages by exceeding the environmental standards in public law in nuisance claims. In addition, the courts have decided that the offenders have unspecific obligation to take actions to prevent future incidences that exceed nuisance standards. Accordingly, when a new high-rise building is built alongside the existing road, the road management administrators may be held liable for damages for exceeding the standard(with the outer walls of the building as the reference point) of the Environmental Policy Act and may also be responsible for installing soundproof tunnel to prevent from exceeding noise standards based on unspecific duty of maintenance. However, such conclusion would be unfair. On the other hand, Civil Code Articles 214 and 217 adopt a different legal approach. For noise damage, the Article 217 section 1 of Civil Code states unless it is a minor noise damage, victims can hold the offender responsible for taking appropriate actions to implement soundproofing measures within the technical and economic limits. If nuisance is not resolved nonetheless, Article 217 section 2 stipulates that the victim must bear the noise occurrence if the location of the offense is used for a general and suitable purpose. Thus, in the environmental damage lawsuits involving nuisance, the court must consider not the environmental standards but the obligations to take appropriate measure on Civil Codes Article 217 section 1 and the duty of endurance on Article 217 section 2. The civil law approach in resolving such issues is not only just in terms of legal theoretical perspective but it will serve to resolve noise disputes in a balanced way for all parties involved including managers of facilities such as roads and airports, victims, and users of facilities. This approach also coincides with the resolutions designed by lawmakers in nuisance disputes.