군비행장 소음 소송에 관한 실무적 쟁점 소고

Abstract

This article reviews practical issues about military aircraft noise nuisance litigation. Military aircraft noise nuisance litigation is revolved around the public structure liability by stipulated the Article 5 of the State Compensation Act. The defect in the construction or management of public structure includes the situation where in the utilization of the public structure for public purposes, the state and degree of its utilization inflict a damage exceeding the tolerable level expected of third parties(so called ‘functional defect’). A case-by-case determination should be made considering various factors as a whole, i.e., not only the nature of infringed right or interest and the degree of their infringement, but also the contents and degree of the public nature of the infringing act, special features of the local environment, availability and feasibility of measures to prevent or reduce infringement or avoiding damage. A high degree of public nature such as national security should be considered more heavily in military airport nuisance. It is sustainable that resident in the vicinity of military airport is entitled to damages for emotional distress because of the continuing vitality of aircraft noise nuisance. Public interest of national security must be considered weightily in determination of wrongfulness of aircraft noise nuisance. Residents stay in registrated residence for a short time per day according to statistical data of living time. So claimant must prove substantial time of stay in registrated residence for damages for emotional distress. The doctrine of coming to the nuisance must be used more actively lest newcomer come within its reach.