일조권침해의 소멸시효 기산점에 대한 고찰- 대법원 2008. 4. 17. 선고 2006다35865 전원합의체 판결을 중심으로 -

Abstract

As the society has been developed and diversified, the activities among people may have an effect on one another. There are several cases where this complexity of the society causes unintentional damages. In most cases, environmental pollution is the effect of legal activities. In order to rule whether damage is illegal or not, it is needed to make a balance between parties. Also it should be considered that the damage exceeds limit that common person could bear. When there happens to be environmental damages, legal aid would be restrained to reduce the pollution and compensate the damage. According to the civil code article 766-1, to deal with tort, there is a three-year sunset from the date that victim or his proxy knew the damage and its attacker. The law regulate this extinction prescription to be short-term one so that the victim can decide whether he would accept the compensation or not and the attacker would be provided the right under the principle of reliability. The trial clearly ruled on the range of compensation and the standing point of reckoning the negative prescription. The court said when the damage is not severe to get rid of the building but exceed the limit, the plaintiff can only claim for damages. The amount of indemnity regarding property damage and mental loss would start counting from the day the pre-delivery inspection is finished which is the plaintiff knew the damage. On the other side, there were dissent opinions that the right to have sunlight is not only the civil right regarding property but also the constitutional right relating to environmental right and personal right. But it also point out that the majority only consider this case as in the category of property right. This approach might not fully guarantee rights. The reality is that the court counts the mental loss to be also covered in the name of the property damage. Unless the plaintiff argues for specific circumstances and has responsibility for proving evidences, it is not allowed to ask for compensating the mental loss separately. For these reasons, this trial judgment made clear the concept and the legal aspects of the right to have sunshine. Furthermore, it is important to recognize that this was the first decision on the issue of starting point of extinction prescription.