Kye Joung Lee, The Presence of Disturbance for Exercising the Claim to Remove Interference with Ownership, The Korean Journal of Civil Law, Vol. 91 (2020), pp. 39-77.
<Abstract>
The Korean Supreme Court issued a decision (“the Decision at Issue”) denying the claim for removal (Beseitigungsanspruch) in the case where the defendant buried a pile of garbage under the land and the plaintiff, who acquired the land after burial, demanded the removal of a pile of garbage based on the ownership (Supreme Court [S. Ct.], 2016Da205540, July 10, 2019(S. Kor.)). This article dealt with the Decision at Issue with a critical eye and the conclusion can be summarized as follows: Firstly, the claim for removal is aiming at the removal of the source of the disturbance rather than the restoration to the original condition. Since a pile of garbage can be considered as the source of the disturbance and a pile of garbage has continued to exist, the presence of disturbance for the claim for removal can be affirmed in this case. Therefore, there are no difficulties affirming the claim for removal of a pile of garbage in this case. Secondly, even though a pile of garbage has been mixed with the soil and the defendant lost the ownership over a pile of garbage, the plaintiff can still claim a right of removal given the principle that the claim for removal is a right against the person who acts for creating the source of the disturbance (Handlungsstörer). The defendant cannot deny his/her obligation to remove by asserting that he/she has lost his/her ownership of the source of the disturbance, i.e. a pile of garbage in this case. In addition, considering the Korean Civil Code §217 stating that the person who may disturb the neighbor’s land by liquid, heat gas, and the like has a duty to take the appropriate measure, the plaintiff can claim the removal against the defendant who caused harm to the ownership by dumping the trash. Thirdly, the Korean Supreme Court put much emphasis on the protection of the soil in the previous decision where a previous landowner sold the land after causing soil pollution by illegally burying waste (Supreme Court [S. Ct.], 2009Da66549, May 19, 2016(S. Kor.)). The Supreme Court affirmed that a previous landowner has a duty to remove waste in the decision. However, the Decision at Issue denied the claim for removal. It can be submitted that the Decision at Issue lacks in the integrity as law that Ronald Dworkin emphasized as the core of the court d ecisions. Given the factors that the d efend ant is a municipality that has a solemn duty to protect the soil for the citizen and therefore, the defendant should assume the heavy responsibility for contaminating the soil, the defendant should bear a duty to remove a pile of garbage for the plaintiff.
<Keyword>
the claim for removal, disturbance, damages, soil contamination, attachment
Kye Joung Lee, The Presence of Disturbance for Exercising the Claim to Remove Interference with Ownership, The Korean Journal of Civil Law, Vol. 91 (2020), pp. 39-77.
<Abstract>
The Korean Supreme Court issued a decision (“the Decision at Issue”) denying the claim for removal (Beseitigungsanspruch) in the case where the defendant buried a pile of garbage under the land and the plaintiff, who acquired the land after burial, demanded the removal of a pile of garbage based on the ownership (Supreme Court [S. Ct.], 2016Da205540, July 10, 2019(S. Kor.)). This article dealt with the Decision at Issue with a critical eye and the conclusion can be summarized as follows: Firstly, the claim for removal is aiming at the removal of the source of the disturbance rather than the restoration to the original condition. Since a pile of garbage can be considered as the source of the disturbance and a pile of garbage has continued to exist, the presence of disturbance for the claim for removal can be affirmed in this case. Therefore, there are no difficulties affirming the claim for removal of a pile of garbage in this case. Secondly, even though a pile of garbage has been mixed with the soil and the defendant lost the ownership over a pile of garbage, the plaintiff can still claim a right of removal given the principle that the claim for removal is a right against the person who acts for creating the source of the disturbance (Handlungsstörer). The defendant cannot deny his/her obligation to remove by asserting that he/she has lost his/her ownership of the source of the disturbance, i.e. a pile of garbage in this case. In addition, considering the Korean Civil Code §217 stating that the person who may disturb the neighbor’s land by liquid, heat gas, and the like has a duty to take the appropriate measure, the plaintiff can claim the removal against the defendant who caused harm to the ownership by dumping the trash. Thirdly, the Korean Supreme Court put much emphasis on the protection of the soil in the previous decision where a previous landowner sold the land after causing soil pollution by illegally burying waste (Supreme Court [S. Ct.], 2009Da66549, May 19, 2016(S. Kor.)). The Supreme Court affirmed that a previous landowner has a duty to remove waste in the decision. However, the Decision at Issue denied the claim for removal. It can be submitted that the Decision at Issue lacks in the integrity as law that Ronald Dworkin emphasized as the core of the court d ecisions. Given the factors that the d efend ant is a municipality that has a solemn duty to protect the soil for the citizen and therefore, the defendant should assume the heavy responsibility for contaminating the soil, the defendant should bear a duty to remove a pile of garbage for the plaintiff.
<Keyword>
the claim for removal, disturbance, damages, soil contamination, attachment