도로소음으로 인한 손해배상청구에서 토지이용의 선․후 관계에 따른 관련당사자들의 민사책임의 양상 고찰 ― “위험에의 접근이론”에 대한 미국 학설 및 판례 태도 개관 ―

초록

For the Claims for damages or injunctions filed on the basis of environmental damage the answer to the question of determination of its unlawfulness depends on whether it exceeds the level of acceptability or not. Priority of time when the land use in question took place can be mentioned as one of the factors in light of which environmental damage would be determined to be above or within the endurable degree. The fact that the victims had lived before environmental damage occurred is in favor of the victims in the judgement of whether it is more than the level of acceptability or not. But reversely, it is being disputed that the fact that the victims knew or could have known of environmental pollution before they reside will be able to put the victims at a distinct disadvantage. This is the question of the doctrine of coming to the nuisance(referred as “the doctrine” below). Tort Law of United States deals with it in the chapter of 'Assumption of Risk’ and 'Contributory Negligence'. The supreme court of florida estimated in Lawrence v. Eastren Airlines, INC as follows: the doctrine is out of place in modern society where people often have no real choices as to whether or not they will reside in an area adulterated by air pollution. In my opinion it is reasonable to conclude that the fact that the plaintiff has acquired or improved his land after a nuisance interfering with it has come into existence is not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable. Therefore The fact that the plaintiff has lived after a highway already used is not in itself sufficient to bar his action nuisance so that 'Korea Expressway Corporation' is liable to the damage to plaintiff's mental health caused by a road-based noise provided that the degree of the damage crossed the acceptable level. It is reasonable for the fact mentioned above to be considered as a factor favoring the defendant in determining of how much the defendant pay for recovery of plaintiff's damages as well.

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