우리나라에서의 환경침해에 대한 留止請求權의 논의현황

ⅰ) 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’. ⅱ) 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 I-nterest 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.