소음침해에 대한 방해제거 및 방해예방청구권의 법적 근거와 인용의무 등 ― 대법원 2007. 6. 15. 선고 2004다37904,37911 판결 ―

ⅰ) The matter of fact relevant to this case was summarized as in the following in order that it may be legally construed: The inhabitants of Myeongbo Villa, located around Seoul-Incheon Expressway that has been managed by Korea Highway Corporation(KHC), have suffered from noises from the expressway. Noises, measured in the building, averagely indicated 77dB(A) and 78dB(A) during the day and the night respectively. The lowest value was 64DB(A). Those inhabitants went to law against KHC for damages and applied for an injunction against a noise nuisance. ⅱ) The legal basis of injunctions against environmental nuisances has been theoretically disputed on, and also precedents have not clarified such problems. On the other hand, the Supreme Court gave a decision on the matter that the owner of a building may apply for an injunction against a noise nuisance on the basis of its ownership. In addition, it explicitly recognized that injunctions against environmental nuisances are based on ‘Article 214 of Civil Act’. ⅲ) However, it is stipulated that the question of whether a nuisance is endurable shall be judged with reference to various circumstances such as the characteristics of damage, the degree of damage, the public interest of damage, the characteristics of harmful acts, the public interest of harmful acts, harmer’s countermeasures against damage, the possibility that the harmer will avoid responsibility, the authority of public law, locality, the priority of land use and otherwise. It is considered as unreasonable. However, the duty of endurance is reasonable to be judged by Article 217 of Civil Act based on the article 906 of German civil law. ⅳ) It is problematic that an injunction against a noise nuisance and a claim for damage may be applied only when a noise is over 65dB(A). The problem is that the noise level was lower than that of ‘Clause 2 and Article 10 of Framework Act on Environmental Policy’. Granted that an injunction or a claim for damage may be rejected for the purpose of keeping environmental standards, juridical discussions on environmental standards were disregarded in the judgment. ⅴ) The claim for damages caused by noises from an expressway was based on Article 758 of Civil Act (Responsibility for Structures). However, this left the question of whether noises from an expressway affect the construction and preservation of structures.