[edit] Supreme Court Decision 99Da55434 delivered on February 9, 2001 [Damages]

【Main Issues】

[1] Standards for the determination of the illegality in the case of damage resulting from hazardous exhaust material originating from authorized facilities or public facilities

[2] The case in which the responsibility to compensate for damage caused by the Korea Highway Corporation has been acknowledged, based on the determination that the degree of infringement upon the hog raising business exceeded the extent to which it would generally be accepted in light of social norms, where the neighborhood hog farmer had to shutdown his hog raising business as a result of the increase in noise and vibration from the expansion of the highway

[3] In the case of damage resulting from environmental pollution caused by a place of business or such, whether the concerned business person shall be required to compensate for damage even if none of the causes are attributable to such person (affirmative)

【Summary of Decision】

[1] Illegality, which is a requisite for torts, should not be determined based on all of the relevant acts as a whole, but determined based on the acts in question on an individual and relative basis. Therefore, even though a facility is lawfully operated or offered to the public, the illegality of inflicting damage to a third party as a result of hazardous exhaust material should be determined separately and the standard for determination in such case should be whether the hazardous level exceeds that which is ordinarily experienced in social life.

[2] In the case of the neighborhood hog farmer having to shutdown his hog raising business as a result of the increase in noise and vibration from the expansion of the highway, the responsibility to compensate for damage caused by the Korea Highway Corporation has been acknowledged based on the determination that the degree of infringement upon the hog raising business exceeded the extent to which it would generally be accepted in light of social norms.

[3] According to Items 1 and 3 of Article 31 and Items 1, 3 and 4 of Article 3 of the Framework Act on Environmental Policy, in the case of damage resulting from environmental pollution caused by a place of business or such, since the concerned business person shall be required to compensate for damage even if there is no cause attributable to such person and the said environmental pollution includes the harm inflicted upon a person's health or the environment by noise and vibration, the business person shall be required to compensate for damages incurred by the injured party even though there existed no cause attributable to such business person.

【Reference Provisions】 [1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Items 1, 3 and 4 of Article 3 and Paragraph 1 of Article 31 of the Framework Act on Environmental Policy

Article 750 of the Civil Act (Definition of Torts) Any person who causes losses to or inflicts injuries on another person by an unlawful act, wilfully or negligently, shall be bound to make compensation for damages arising therefrom.

Article 3 of the Framework Act on Environmental Policy (Definitions) For the purpose of this Act, the definitions of the terms shall be as follows.

1. The term environment means a natural environment and living environment

2. <omitted>

3.The term living environment means the environment related to the daily life of human beings, such as the air, water, waste, noise, vibration, malodor and sunshine, etc.

4.The term environmental pollution means air pollution, water pollution, soil pollution, sea pollution, radioactive contaminations, noise, vibrations, malodor, etc., which are caused by the industrial activities and other human activities, and which are such conditions as inflicting damages on the human health or the environment

4-2.~5. <omitted>

Article 31 of the Framework Act on Environmental Policy (Absolute Liability for Suffering by Environmental Pollutions) (1) If any suffering is caused by environmental pollutions or damages generated from a business place, etc., the enterpriser shall indemnify for the suffering.

(2) <omitted>

【Reference Cases】 [1] Supreme Court Decision 89Daka1275 delivered on July 23, 1991 (Gong1991, 2211), Supreme Court Decision 98Da47528 delivered on July 27, 1999 (Gong1999Ha, 1755)

【Plaintiffs, Appellants】 Choi Oh-jang and 2 others (Law Office Barun, Attorneys Kim Chan-jin and 9 others, Counsel for plaintiffs-appellants)

【Defendant, Appellee】 Korea Highway Corporation (Law Office A-Ju, Attorney Yu Ho-kyung and 5 others, Counsel for defendant-appellee)

【Court of First Instance】 Seoul District Court Judgment 97Gahap23704 delivered on June 18, 1998

【Court of Second Instance】 Seoul High Court Judgment 98Na36155 delivered on August 25, 1999

【Disposition】 The judgment of the court below shall be reversed and the case shall be remanded to Seoul High Court.

【Reasoning】 The grounds for appeal are examined as follows.

1. According to the reasoning of the court below, the court below determined the following based on the basic facts in this case: the plaintiffs jointly managed a hog raising business since May 1, 1993. The hog farm has an aggregate building dimension of 1,785.6m2 on land that totals 2,985m2. The hog farm's t trade name is Beopju Farm and it raises approximately 1,600 hogs (180 heads of breeders, 1,420 heads of others) on the 2 parcels of land including 42 Beopju-ri, Woochun-myun, Hoengsung-gun, Kangwon-do; the defendant was a corporation engaged in the business of occupation and management of national motorways on behalf of the Minister of Construction and Transportation pursuant to Paragraph 1 of Article 6 of the Motorway Act and conducted the construction to expand the section of national highway Line # 4 (Youngdong Highway) starting from San 160-2, Manjong-ri, Hojeo-myun, Wonju-gun, Kangwon-do, which passes next to the said hog farm and ending at 646 Woohang-ri, Woochun-myun, Hoengsung-gu, Kangwon-do from the existing 2 car lanes to 4 car lanes in roughly 13 months commencing in the beginning of January 1995 to the end of January 1996; following the completion of the above expansion, the distance between the hog farm and the national highway, which was previously about 65m, was reduced to about 25m, and not only was the small hill, which had been acting as a natural sound proofing wall between the hog farm and the national highway, cut away for the said road expansion, but also circumstances such as the rise in the volume of traffic and the speed of the progress of vehicles and the use of ascon instead of asphalt on the expanded highway surface caused the noise and vibration from the above highway, which used to be from 45dB to 55dB, to rise to an average of 75dB and, as such, it became impossible to carry on a normal hog raising business in the above hog farm and the plaintiffs had to shutdown the hog raising business on May 31, 1996. In response to the claims of the plaintiffs that the defendant was responsible to compensate for damages due to causing the shutdown of the hog raising business, the court below concluded that the defendant was not responsible for the damages incurred by the plaintiffs. The court based its opinion on the grounds that, since the road expansion construction in this case was carried out as a public interest to increase the vehicle capacity of lanes and the improvement of the speed of progress, the small hill, which had been acting as a sound proofing wall, was inevitably cut away in the process of expanding the existing national highway. It is possible to more or less block the noise and vibration by installing sound proofing walls in the section passing by the above hog farm, but it seems that the situation after the installation of such ordinary sound proofing walls would still have brought difficulty to the continuation of the hog raising business and, thus, it is hard to say that there is any illegality on the part of the defendant in the defendant's process of completing the construction in this case and the maintenance and management of the road afterward for having not taken any action to prevent or lessen the noise and vibration resulting from the expansion of the road. Additionally, no obligation existed for the defendant to foresee the result that the plaintiffs would no longer be able to continue the hog raising business and take action so that such a result did not happen. Since it is also hard to see that some danger exists on the road itself merely because of the fact of an increase in noise and vibration in the neighboring area as a result of the construction in this case or that there exists the possibility that, later, harm may develop from the usage, the structure responsibility of Paragraph 1 of Article 758 of the Civil Act may not be applied to this case.

2. However, first of all, the conclusion of the court below to the effect that the defendant was not responsible for the damage incurred by the plaintiffs shall not be justified for the following reasons.

A. First, Illegality , which is a requisite for torts, should be determined not by all of the relevant acts as a whole, but by the acts in question individually and relatively. Therefore, even though a facility is lawfully operated or offered to the public, the illegality of inflicting damage to a third party as a result of hazardous exhaust material should be determined separately and the standard for determination in such case should be whether the hazardous level exceeds that which is ordinarily tolerated in social life. (See Supreme Court Decision 89Daka1275 delivered on July 23, 1991, Supreme Court Decision 98Da47528 delivered on July 27, 1999, etc.)

Even under the judgment of the court below, it is clear that, after the completion of the expansion of the above highway, occupied and managed by the defendant, as a result of the increase in the volume of traffic and the relative speed of cars, enough noise and vibration was produced to cause the plaintiffs to shutdown the hog raising business. Then, considering the fact that the nature, content, degree and scale of the damage incurred by the plaintiffs, the cause of the damage and other information that can be verified by the records, such as noise levels during the time of the above highway expansion and afterward, and the normally allowed standard for noise, and the fact that the defendant took no actions to reduce harm to the plaintiffs before the above highway expansion nor after the highway was opened to traffic, and the location and proximity to the road and the usual land use relation of the neighboring area of the site where the said hog farm used to be, it should be deemed that the degree of infringement upon the plaintiffs' hog raising business caused by the noise resulting from the above highway expansion and traffic exceeded that which is, in light of social norms, ordinarily tolerated and, therefore, although the nature of the use of the highway and the traffic on it is for the public interest and the noise and vibration from the traffic on the highway is inevitable, as long as the degree is such that it exceeded the tolerance limit and inflicted such harm to the plaintiffs, the defendant cannot escape from the responsibility for the damage to the plaintiffs as a result thereof.

B. Next, according to Items 1 and 3 of Article 31 and Items 1, 3 and 4 of Article 3 of the Framework Act on Environmental Policy, in the case of damage resulting from environmental pollution caused by a place of business or such, since the concerned business person shall be required to compensate for damage even if none of the causes are attributable to such person and the said environmental pollution includes the harm inflicted upon a person's health or the environment by noise and vibration, the business person shall be required to compensate for damage incurred by the injured party even though there existed no cause of harm attributable to such business person.

C. Despite all that, the court below concluded that the defendant was not responsible for damages based on the ground that the illegal act and the reasons attributable to the defendant were not admitted. Therefore, there is a reversible error in matters of law in the judgment of the court below by misinterpreting the legal principle on compensation for damage as a result of the occurrence of noise and vibration from roads that exceeds tolerance limits, which have affected the conclusion of the judgment. The ground for appeal pointing out this issue can be accepted.

3.Therefore, the judgment of the court below shall be reversed without examining the remaining grounds for appeal and the case shall be remanded to the court below for retrial and judgment with the assent of all Justices who reviewed the appeal as ordered per Disposition.

Justices Song Jin-hun (Presiding Justice)

Yoon Jae-sik

Lee Kyu-hong (Justice in charge)

Son Ji-yol

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