소유권에 의한 방해배제청구권에서의 방해개념에 관한 연구

소유권에 기한 방해배제청구에서 방해의 개념을 연구한다.

The Meaning of obstruction in the claim of obstruction removal by ownership As modern society has progressed rapidly, environmental pollution problem is becoming more and more serious. More environmental pollution and social problems associated with the development will continue to occur, it is real and inevitable, and therefore violated the individual's ownership case is bound to happen frequently. Above all, the time when economic development was a priority for the company, the company try to resolve environmental problem by monetary measures rather than restitute. Today, however, in terms of economics, cash compensation is becoming a more inefficient than obligations purification.

That is, when environmental pollution occurs, if the company doesn't conduct purification duty, as time goes by, the cost will increase. In addition, environmental damages are not coming out immediately. So, after a substantial period of time, the damages turn out to be serious. It means that we can't measure the exact cost of the environmental damages in its early stage. Thus, the restitution by obstruction removal right is getting more attention than claims for damages which are based on the principle of financial compensation. So I think that obstruction removal right can be a good solution to remove the pollution in terms of social aspects.

If someone's ownership is violated by others, to solve this problem, there are Civil law which is called "the claim of obstruction removal "(Section 214 of the Korean Civil Code(hereafter “KCC”)) and "compensation for damages right"(Section 750 KCC). The big difference between the two claims of liability is if there exist "intention"(Vorsatz) and "negligence"(Fahrlässigkeit) or not. This means that the liability of damages needs "intention" and "negligence"(fault-liability), obstruction removal right doesn't need "intention" and "negligence"(no fault liability for compensation).

Therefore, "the claim of obstruction removal "(Section 214 KCC) and "compensation for damages right"(Section 750 KCC) can be distinguished by fault-liability. Actually it's very difficult to discern. Furthermore, this distinction has brought about controversial issues for the Supreme Court's decision at the 'landfill case'. The Supreme Court's decision is like this, "In terms of "the claim of obstruction removal "(Section 214 KCC), 'disturb' means being in the situation of infringement even at the moment. And it is different from 'damages' concept because 'damages' concept means that it isn't related with the present anymore.

"the claim of obstruction removal "(Section 214 KCC) exists to remove the cause of obstruction which is now going on." This is the question of distinction between "obstruction" and "damages". It can be distinguished by whether obstruction behavior is completed or not. But I think this is unjust. Even if obstruction behavior is completed in the past, the remains of past still exist. So the damages caused by obstruction result and the substance caused by obstruction result coexist simultaneously. It means that in this situation Supreme Court didn't distinguish whether someone's ownership is being violated or not.

Thus this paper aims to find out the standard that can distinguish clear difference of "obstruction" and "damages". In this paper, starting with the concept of "the claim of obstruction removal "(Section 214 KCC), I classified the types and studied 'the other party'(obstructor) and finally I examined how to distinguish between "obstruction" and "damages". This obstruction removal right began with the physical obstruction in the beginning and today it is applied even to the abstract obstruction. The types of interference can be classified into 3 concepts. Those are positive, negative, and ideal obstruction(Beeinträchtigung).

A typical type of actively interfering case is when someone occupies the land to build something on the other's land illegally. In this situation, the owner of this land can order violator to demolish the unauthorized construction of buildings by "the claim of obstruction removal "(Section 214 KCC). As the examples of negative obstruction, there is infringement on prospect right or infringement on the right to have sun right. And depletion of ground-water and jamming are also included in the negative obstruction. Negative obstruction is exercised within the scope of the ownership of owner's property. And this kind of exercise of rights infringe others' right.

Therefore Negative obstruction cannot be viewed as "Negative obstruction". To be approved as "the claim of obstruction removal"(Section 214 KCC), Negative obstruction should become similar to general infringement of ownership. General infringement of ownership should be approved only when critical infringement takes place. As an example of the ideological obstruction, there are psychological, moral and aesthetic violations. In Germany, it's hard to approve ideological obstructions, There are two reasons. First, ideological obstruction can extend excessively the scope of ownership and second reason is that they think that the land values cannot decline.

However, In Korea, the land values can sharply decline if there are brothels, inns, hospital morgue or funeral hall in the neighborhood. That's because these facilities can have negative effect in terms of education for the children. Thus, Idealogical obstruction can have an effect with respect to the increase or decrease of the land values. Next issue is obstructor's responsibility potential. Obstructor is classified as "Handlungsstörer" and "Zustandsstörer" in german. And the responsibility is divided by "Handlungshaftung" and "Zustandshaftung". In case of "Handlungshaftung", there are controversial opinions about imposing responsibilities, when the behavior is over.

I think that in case of "Handlungshaftung", we should admit the responsibility. But in case of "Zustandshaftung", two conditions need. "Zustandshaftung" needs 'intention of mai

제1장 서론 1 제1절 연구의 목적 1 제2절 연구의 내용과 방법 3 제2장 우리 민법의 방해배제청구권 6 제1절 소유권에 의한 방해배제청구권의 연혁과 제정배경 6 Ⅰ. 방해배제청구권의 연혁 6 Ⅱ. 방해배제청구권의 제정배경 7 제2절 소유권에 의한 방해배제청구권의 의의 및 요건 9 Ⅰ. 소유권에 의한 방해배제청구권의 의의 9 Ⅱ. 소유권에 의한 방해배제청구권의 요건 11 1. 당사자 11 2. 방해 13 3. 방해자의 귀책 및 위법성 14 제3절 소유권에 의한 방해배제청구권의 효과 20 Ⅰ. 방해제거의 적극적인 행위 20 Ⅱ. 방해중지청구 21 제4절 기타민법 제217조 생활방해금지 규정과의 관계와 타법률과의 관계 22 Ⅰ. 민법 제217조 생활방해금지와 방해배제청구권 22 Ⅱ. 토양환경보전법과의 관계 27 제3장 방해의 개념과 유형 29 제1절 방해의 의의 29 제2절 적극적 방해(Positive Beeintrchtigung) 30 Ⅰ. 적극적 방해의 의의 30 Ⅱ. 적극적 방해의 유형 30 1. 타인의 토지의 불법건축물 30 2. 법적방해 32 3. 건물의 사진촬영 35 Ⅲ. 소결 37 제3절 소극적 방해(Negative Beeintrchtigung) 39 Ⅰ. 소극적 방해의 의의 39 Ⅱ. 소극적 방해의 유형 39 1. 일조권 침해 39 2. 조망권의 침해 42 3. 지하수 고갈 46 4. TV 및 라디오 전파의 수신방해 47 Ⅲ. 소극적 방해에 관한 견해 대립 48 1. 긍정설 48 2. 부정설 49 3. 검토 50 제4절 관념적 방해(Ideele Beeintrchtigung) 53 Ⅰ. 관념적 방해