환경권의 실현방안에 관한 연구

Abstract

ABSTRACT

- A Study on the Accomplishment of Environmental Right -

These days, as environmental problems that threatens existence of human beings have been worse, we need global environmental policy and means, which are considered as an important political task to be taken care of nationally or internationally for our environment. The activation of economical growth and social development accompanied by increased population and development of scientific technology has increasingly affected our environment, and accordingly, ecological, cultural and social pollution is producing lots of problems as well as affecting environment of human beings. In fact, in early 20th century when the level of industrial development and scientific technology is low, environment pollution was not considered as a serious problem. However, due to rapid economic development in middle and late twentieth century, we had to face with a society of mass-production and mass consumption. In this process, we have the following various problems but not specific countermeasures for environmental preservation : destruction of ozone-layer, green house effect, acid rain, desertification of the earth, reduction of biological species, marine pollution, accumulation of harmful wastes and decrease of sperms due to Endocrine disruptor. The problems have interrupted natural circulation of our ecological cycles and caused incredibly serious status of pollution that can not be purified by its autonomous capability. Everyone has an instinct to live in pleasant and healthy environment, which can be said that it stems from the desire to pursue happiness and enjoy human life based on human respect. However, the environmental issue for our pleasant and healthy life imposes the duty to protect our environment and keep it pleasant and clean on nations and the people based on human respect. However, as recent environmental problems occur collectively and complexly, general residents or collective damages can not be relived only by private law though they have the same damages as the party concerned. And the relief in the private law is provided in a form of monetary compensation except the case of interruption exclusion claim which is an exceptional prevention claim. As what is necessary to solve the environmental problems is preservation of the nature, administrative management of regions and space in a broad sense and preventive administrative order specifically as well as broad and effective preventive management, it is not appropriate to expect that the court presents all the preventive functions. So, the private law relief has a limit to resolution of dispute in environmental problems. The public law relief system protects the right and interest of the victim of environmental pollution by giving disadvantages to the person who causes it. As it is a post-relief system, it can prevent environmental pollution indirectly. In particular, as a post-measure, it can prevent expansion of damage, recover the environment and relieve the victim. Though nations provide various standards and means to solve the environmental problems, it does not seem that the problems have been solved. So, academic examination on it is very important in order to solve problems and countermeasures in legal institutions. Therefore, under the assumption that we have to recognize importance of 'environment' by examining basic ideas to guarantee our environment right, and change our recognition on value of environment that will be inherited to our descendents, this study looks at the environmental impact assessment and discussion on the environmental dispute conciliation as a preventive system through a review on plans in addition to suits (ADR). And through examination of standing to sue in comparative laws which occupies much area in revised part of the Administrative Litigation Act, this study figures out advantages and disadvantages of advanced foreign systems to identify loop homes of our legal acts and develop countermeasures. And it is to develop effective plans to improve our systems for guaranty and realization of environment right, and present various alternatives to prevent environmental problems reasonably and overcome institutional contradiction through discussion on activation plan of the environmental litigation act. It is expected that it will contribute to resolution of basic problems in our systems and our being one of leading countries in environment. In particular, as social recognition on importance of environment prevails, this study intends to supplement methods of the private law by those of the public law which means post-resolution of the problem. What is necessary to solve the environmental problems is preservation of nature, and administrative management of regions and space. Specifically, it will be a preventive administrative act. Therefore, this study finds problems based on general examination of public environmental administration and presents theoretical grounds necessary for improvement of our legal system. This study recognizes seriousness of environmental problems, emphasizes infringement of ecological, cultural and social pollution on national environmental right and mentions why countermeasures against imperfect legal acts should be developed. And it looks at the basic properties of the environment right by examining its general theories. In particular, this study thinks that the environment right is not a right only for our generation, but it is considered as human right of the 3rd generation as we have to inherit clean and beautiful natural environment to next generations. In respect to the environment right according to specified legal systems, this study looks at the infringement on environmental property by national development policy, legal restrictions and advantages and disadvantages of economy-inducing restrictions of administrative agencies, and responsibility of our nation and public organizations for environmental pollution. In the aspect of the public law, this study analyses the character and types of the environment litigation act and standing to sue which occupies much area in its revised part in a comparative law to identify the problems of our current constitution and intent of the revision. In particular, in examining the regulation on the standing to sue in current legal act, this study discusses its standard and expansion by referring to theories and precedents and looks at the discussion on directions of its future revision to present better standards. And through examination of the plans beyond the suit for guaranty of environment right, it confirms the environmental Impact assessment and the environmental dispute conciliation as preventive systems against environmental pollution and identifies problems of both the institutions. Finally, as plans to improve the institutions, this study provides suggestions on reinforcement of active role of the court for activation of the environment litigation act for guaranty and realization of environment right, activation of public trust theory and improvement of legal institutions. It also develops new and effective plans on the environmental Impact assessment, the environmental dispute conciliation, institutionalization of participating decision in administrative procedures, activation of environment movement through education, reconsideration of management and law of the pollution by the public organizations, and change in national recognition and positive participation. And this study presents suggestions on roles and positive substantive judgement of the court in the administrative suits and application of legal principles on the environment sharing for our legislative reality based on public trust theory. It suggest plans on the improvement of the administrative law for guaranty and realization of the environment right, and institutional plans for actual realization of the environment right.