조망권의 법적 보호범위에 관한 연구 - 대법원 2014. 2. 27. 선고 2009다 40462 판결을 중심으로 -

The view right refers to the right to legally seek protection when the beautiful landscape or view that the owner of the land or building has enjoyed from before is obstructed by the construction of a building on the adjacent land. There are some negative views on the legal protection of the view right, but the fact that the view right is subject to legal protection is confirmed in academic and Supreme Court precedents. According to the current majority theory, the view right is a right that presupposes that the view on it, such as a beautiful natural, historical or cultural tradition, has a protective objective value, such as a perspective or environmental benefit to enjoy aesthetic satisfaction or mental relaxation. In order for an act to infringe on the view right to be judged as an offense under the judiciary, the degree of infringement on the view right must exceed the number of acceptance limits commonly cited in social norms. According to the 2004 Supreme Court precedent, if the view target of the existing land or building owner is not an objectively valuable landscape, such as a natural, historical or cultural tradition, it is not recognized as the subject of protection of the view right. In this situation, in case the view to the outside through a living room or window is blocked by a building built on the adjacent land, a controversial issue arose as to whether the feeling of closure or pressure caused by the obstruction of view felt by the owners of existing land or buildings could be viewed as an infringement of separate rights or legal protection interests in addition to the previously protected view rights or sunlight rights. This article focuses on the discussion of whether the sense of closure or pressure is a new right or legal protection object other than the view right or the sunlight right, and the scope of the view right by reviewing Supreme Court case 2014.2.27. Docket No. 2009da40462. In details, part II overviews facts and holdings of Korean Supreme Court case 2014.2.27. Docket No. 2009da40462. Part III examines in detail whether the sense of closure or pressure due to blocking view is an infringement of independent legal protection interests, in the order of major foreign countries, the United States, Germany, and France. Lastly, part IV addresses the problems of the Supreme Court ruling, which sees the feeling of closure or pressure due to blocking view as an infringement of independent legal protection interests, and suggests measures to resolve these issues as follows. According to the fact that residents of residential buildings such as apartments live in common, they must bear the situation in which infringement of the view or sunlight occurs to some extent, and the results of comparatively reviewing laws of major foreign countries, it is unlikely that the sense of closure or pressure caused by the block of vision can be recognized as a separate right or legal interest other than the right to view or the right to sunlight. In addition, precedents and academia recognize the right to view as an object eligible for legal protection, but the scope is too narrow. In order to achieve an appropriate balance between efficient use of land and protection of the interests of damaged residents of existing buildings, in the land adjacent to t he d amaged b u ilding, t he h eight and size of t he n ew b uilding e xpected for the purpose of the land prescribed by law should be used as the criteria for judging the view right and the number of acceptance limits.