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A Legislative Study for the Preventive Solution of Sunshine Conflicts

  • DONG-A LAW REVIEW
  • 2009, (45), pp.41-95
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

LEE SANG CHEON 1

1동아대학교

Candidate

ABSTRACT

The control of sunshine in building code is carried out through the conception of space i.e. height and distance, but the distribution of sunshine in the field of civil law is carried out by the hours of lasting sunshine. The sunshine conflicts are caused by the differences between the two means to guarantee sunshine. The sunshine interests have the characters of ‘game of zero sum’. Thus the essential function of the criteria of permitting building in concern with sunshine is the reasonable distribution of sunshine interests. From the above differences, the function of sunshine distribution through the existing building code is being carried out in a restricted degree. As in case of Japan, there are a little differences in the criteria of guaranteeing sunshine between civil law and administrative law. The standard law of building performance of Japan has the article that it should be decided by the hours of lasting shadow whether the right to enjoy sunshine infringed or not, but the case law by civil court has made decisions about shunshine infringement chiefly by the hours of lasting sunshine. Therefore, there are little severe conflicts surrounding sunshine in Japan, but in Korea there are so much severe cases of sunshine conflicts as the cases of injuction of building prohibition. Firstly, the presence of the differences between the two legal criteria dealing with sunshine in the above two legal fields is not consistent with our national legal feeling. we don't think it reasonable that the lawful building observing the criteria of permitting building is illegal in private law. Secondly, the existing building code is breaking the legal theory of ‘prohibition of inclusive mandate legistlation’, and the lower administrative legistlation doesn't go with the upper one. Thirdly, the negligence of the presence of the above differences come to the ‘nonperformance of necessary legistlation’ in theory of constitutional law. The differences should be removed at once. It is impossible and unreasonable that the criteria of sunshine in civil law be adjusted to the criteria of permitting building in building code. The criteria of permitting building should be revised according to the criteria of reasonable distribution of sunshine of case law in civil law. By that, in consideration of the revision, the civil court wouldn't accept any injunction of prohibiting building against the building under construction keeping the criteria of permitting building as long as under no special circumstances. If so, the sunshine conflicts would be much decreased, the new legistlation would be consistent with our national legal feeling, elevate the national spirits of observing law, and be helpful to the social peace.

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