소유권에 의한 방해배제청구권에서의 방해개념에 관한 연구
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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 maintaining obstruction condition' and 'removal possibility of obstruction cause'. That is, we need these two requirements. "Zustandshaftung" imposes the burden of removal obstruction duty even in the situation where owner's responsibilities don't exist. This is similar to "no fault liability for compensation" of Section 758 KCC. In addition, with respect to soil pollution, There rises a question of whether "Zustandshaftung" can be claimed or not for the land of "Verbindung" oil. Even if the pollutant belongs to the owner by "Verbindung" oil, it isn't related with the opinion of the owner. This is equal to obstruction. Therefore, obstructor is charged with duty of obstruction removal by "Zustandshaftung". In the case of obstruction by nature force, I think that german theory is reasonable. German theory classifies obstruction by nature force into two concept. That is, "the obstruction which is Involved in the idea of human " and "the obstruction which occurred only by nature force". In the Supreme Court's case, the court judges that obstructor is 'the one who is in the position of dominating the obstruction circumstances'. But it needs to be careful. Because such judgment admits to obstruction by nature force. Also, It is very difficult to determine to the other party of obstruction. Therefore, It is reasonable that obstruction of nature force must be classified. The need to distinguish between the concept of damages and the concept of obstruction is raised. Particularly in Germany, There has been many discussions about the distinction between obstruction and damages. Because both the claim of obstruction removal and the claim for damages makes it a rule to restore to original state. In Germany, There are three theories. First, "Kausalitätstheorie" is the majority theory, second "actus-contrarius theorie" by Baur and lastly "Rechts-usurpationslehre" by Picker is the minority theory. "Rechts-usurpationslehre" can clearly distinguish the concept of damages and the concept of obstruction. But "Rechts-usurpationslehre" has a lot of problems. "actus-contrarius theorie" is reasonable. But with the theory of "actus-contrarius theorie", it is hard to discern the difference between the concept of damages and the concept of obstruction. Also "actus-contrarius theorie" has a problem that it can excessively reduce the range of the claim of obstruction. Germany's Supreme Court has agreed with the "Kausalitätstheorie". In Civil Code of Korea, these discussions seem to be unnecessary. Because a claim for damages makes it a rule to demand reparation in cash at Civil Code of Korea. But it was necessary to the case of 'landfill case' which was judged in the Supreme Court. In the case of 'landfill case', Supreme Court judged that landfill action was not a obstruction but a damages. Because landfill action was completed act. Landfill action removed "Handlungshaftung", but "Zustandshaftung" remains. In Germany's Supreme Court, if the oil contaminated soil by violator, violator must make restitution of the contaminated soil. Furthermore, the necessary cost should be included in this restitution. If the owner of the land is changed, there arose a question of whether he or she can claim the claim of obstruction removal. When it comes to exercising the claim of obstruction removal, the concept of the property ownership doesn't matter. Furthermore, if unwanted "Verbindung" takes place, I think that it's unreasonable to impose some restriction on the claim of obstruction removal. Finally, There are the problems of self-help and burden of expenses. If an obstructor has general conditions, it is easy to. In exercising self-help, there are two law logics which impose the cost on the obstructor. And they are called "Geschftsfhrung ohne uftag" and "ungerechtfertigte Bereicherung Herausgabeanspruch". Although the self-relief provision exists in Civil Code of Korea, but how to interpret this is controversial. But in the case of German, they admit self-relief. And in the German Civil Code Section 910 Civil Code Section 1004, it is interpreted as the right of self-relief and defense rights of the owner The claim of obstruction removal gains a lot of the spotlight with regard to the latest environmental pollution. In particular, the Soil Environment Conservation Act has a legal perspective, but it is clear that it is based on the Civil law. This is why we absolutely need the claim of obstruction removal as we're facing lots of environmental problems. If an individual face the violation of private ownership, as a way to resolve this, there are the claim of obstruction removal and the claim of damages. However, the claim of damages has the problem of the burden of proof, and makes it a rule to compensate by cash. Consequently, it is impossible to be restored in original condition by the claim of damages. Therefore I think that he burden of proof is easy to prove in the claim of obstruction removal, and it is resonable to use the claim of obstruction removal positively because it is based on restoration.