眺望權 法理의 再檢討

Abstract

In Korea, Recognition of the prospect right and concerns on its protection have been increased according to improvement of standard of economic and cultural life. Disputes about prospect right has been also increased because new construction of residential-commercial complex building and rebuilding work at big cities are increasing. Nevertheless, concrete discussion about scope of legal protection of prospect right has not conducted. The prospect right means the right to take a view of fine scenery, such as mountain, river, the sea, park and a person whose prospect right has been violated by other’s building of some structures can legally claim for the protection of the right. The prospect right is the right to be able to look into the distance or see the scenery in the distance because the prospect means to look out the distance and to view, and the scenery to get the specific region. The prospect right avail to be able to see the agreeable and pleasant scenery. It is not clear that our law system recognize benefit of view as a right. But recently some scholars tends to recognized right to view as a subject of independent legal protection. The theme of this paper is to define the concept of the prospect right and review theory of the prospect right. There was established a law of view in protection from infringement in Korea lately. But the prospect right has been considered as reflective or living profit unlike right to sunshine and recognized as additional rights of right to sunshine. Japan’s many scholars and case law recognize benefit of view as a right. The right is based on need, duty, claim, rules. The need that rules make the prospect right is sufficient. We might treat it as a environmental rights. but mostly case law do not regard it as a right, it is wrong. The prospect right should be legally protected as a right. In this paper, I studied the case for the prospect right infringement from a law and proposed legislation ways through diverse theory. The purpose is to research in legal principles of prospect right infringement, to propose legislation ways from the legal bases of the civil law. All of fine scenery is not protected by the law, but to be legally protected, it should be objectively proved that the scenery has the value as benefit for living. If we admit the prospect right, we must scrutinize satisfying the required conditions. The person who has been damaged by illegal violation of prospect can claim the offender for prevention or removal of disturbance. This study is to seek method to ensure efficacy of legal protection of the prospect right by establishing legal principles.