眺望利益侵害의 違法性

Abstract

Of the various infringements in our living condition, the infringement’s standard on a right to enjoy sunshine is offered by Building act enforcement decree, and if violated, the illegality is acknowledged, but because there is no standard for infringement on benefit of view, the acknowledgement in legal system can be at issue. Like that, the study is necessary for offering the standard of settling the dispute through infringements in living condition, focused on benefit of view, newly presented via a legal framework on the illegality for the infringement on benefit of view. For the illegality of infringement on benefit of view, the trend of precedents in Korea is analyzed and the existing theories are reviewed. Consequently, the conclusions are as follows; First, benefit of view is the benefit and protection of the law, which is legally protected. Although the benefit of view doesn’t satisfy all the conditions, when fulfilling the certain condition, it can be the subject protected as the benefit and protection of the law. In addition, the benefit of view must be distinguished from the right to enjoy sunshine. Second, even though the infringement on the benefit of view is not infringement of a right, it constitute the responsibility for illegal action. The new theory of endurance level unitary consolidates legal fruits, trespasser’s imputation causes, and illegality on the basis of endurance level. Finally, in the case that the infringement on benefit of view has illegality, the relief measures can be divided into preliminary relief, such as prohibition or elimination request, and ex post facto relief, for example, a claim for damage as tort liability. However, legislation is needed to legally protect the benefit of view and clear the relief for the infringement. Especially, clause 906 of the Germany civil law, when the two benefits and protections of law are conflicted each other, acknowledges claim for compensation as a kind of responsibility to reconcile them, which is very suggestive. While settling the dispute of view caused by the infringement on benefit of view, in the case that there is no illegality on the infringement, the regulation is needed that, to some extent, the doer is charged with the duty of paying for damage.