조망권 침해와 불법행위책임

A Study on the Prospect Right Infringement and Tort Liability

Prospect right refers to the right to the enjoyment of aesthetic satisfaction and mental relaxation by viewing the beautiful scenery. In case the views of the beautiful scenery that the owner of land and buildings has enjoyed previously was disturbed due to the construction on the adjacent land of prospect benefit, whether the legal protection is given or not is the matter of prospect right infringement. Urban areas are expanded with high-rise buildings and are becoming an increasing desire to live in a pleasant residential environment due to the improvement of living standards. Accordingly, securing prospect and the dispute regarding the infringement between houses or other buildings and other adjacent buildings have been gradually increasing. With regard to prospect right infringement, the claims for damages due to the tort can be a common remedy. However, since there is no prestigious provision on prospect right, the doctrine and the interpretation of law for the requirement of claim for damage is necessary even in the case that civil code section 750 has been applied. In this paper, the requirements of establishing the claim for damage as a posterior remedy when the prospect right is infringed have been reviewed. To admit the claim for damage due to the tort, the intentional negligence, illegality, the occurrence of the damage and human relations should be recognized and the problematic matters especially for prospect right with regard to each factor are as follows. At first, if one intentionally violates other person’s prospect right, the claim for damage can be relatively easy to be admitted without any specific problems in proving the claim. On the other hand, if the prospect right infringement has been made by conventional buildings without any intention to damage other person, reasons attributable can exist and then the claim for damage due to the tort can be admitted to the victim in the form of admitting predictability and duty of evasion under the violation on duty of care. At second, in case of prospect right infringement, illegality is determined by the limit of its patience. In other words, if the prospect right infringement is in the permissible range for social life, it could not be considered in the aspect of illegality, however, if it is beyond the acceptable range, it could be regarded as illegal. The factors to determine the limit of its patience are the degree of the prospect right infringement, locality, and the use of facilities by legitimate title, availability of revenue, residential precedence relationships, and possibility of avoiding potential damage. At third, damages caused by the prospect right infringement can be classified as property damages and psychological damages. The price fall of buildings and decreasing business profits can be regarded as the property damage, and the property damage that the victim has can be regarded as the amount of fallen price of the buildings’ market price in principle. In addition, for the mental anguish received due to the deterioration of the living environment should be reparation as alimony. In case that prospect right infringement has been made due to the construction not violating the provisions of method such as building codes, the amount of compensation for damage can be reduced. Prospect infringement is not relatively desperate to health or life compared with light of right, and the subjectivity of the victim can be involved in the degree of damage, the duty of limit of patience is more required and the discursive protection of the prospect right can be conflict of land ownership of others.