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TITLE 【Syllabus of Latest Opinion】 Supreme Court 2016Da233538, 233545 Decided November 28, 2019 【Confirmation of Nonexistence of Obligation and Damages (Etc.)】 [full Text]
Summary
[1] Standard of determining illegality in a case where a third person is damaged by harmful emissions resulting from facilities which are legitimately operated or provided for the public
[2] Meaning of “any defect in the construction or maintenance of a structure” stipulated in Article 758(1) of the Civil Act and standard of determining whether the damages caused by the use of the structure exceed “the limit to what a third person can tolerate”
[3] The allocation of burden of proof on causality in pollution lawsuit
[4] In a case where the Party A, who is an operator of an orchard near a highway, claimed damages against the Korea Expressway Corporation, arguing that the damages including that the trees in the orchard wither to death are caused by the exhaust fumes discharged from vehicles running on the highway and the deicing chemicals used by the Korea Expressway Corporation as the growth and fruit of the fruit trees planted in the first and second rows adjoining to the highway among fruit trees planted in the orchard is considerably sluggish and stagnate compared with those planted in other places, the case holding that the liability for damages of the Korea Expressway Corporation was acknowledged by deeming the illegality to be admitted on the ground that this goes beyond the endurable limits as well as that the damages such as defoliating the fruit trees, impeding the growth and fruition of the trees and decreasing the commodity sales are caused as a result of the fact that the gases emitted from the highway installed and supervised, and the elements such as chloride included in deicing chemicals sprayed, by the Korea Expressway Corporation affected the Party A’s orchard
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