環境訴訟의 原告適格 擴大에 관한 硏究

Abstract

The economic activities and developmental administration of a modern society cannot help but inevitably lead to various environmental damages. More victims of environmental infiltration have been coming out of the woodworks to file lawsuits to remove environmentally harmful facilities or to secure the rights of enjoying the sunshine and the view. However, with the traditional structure of civil suits or administrative procedure for administrative lawsuits, the reality is that a group conflict cannot be resolved effectively to relieve most of the environmental damages. As such, there has been a demand for an establishment of a new concept called environmental lawsuit. An environmental lawsuit refers to a court trial procedure specifically aimed at saving the environment from damages. The environmental lawsuit which is a modern integrated type of lawsuit can be said to encompass all the lawsuits that occur for the purpose of saving the environment which had been endangered due to the violation of the environment or to protect the environmental benefits. The subject for environmental lawsuits have various origins and there are many cases where it would be hard to prove or claim responsibility. The scope of the damage especially has a wide distribution range. With just the subjective lawsuit structure which mainly focuses on realistic rescuing operation after the actual violation, it is not possible to amply resolve environmental matters. This is precisely why environmental matters cannot be resolved fully. Environmental lawsuits should also be equipped with the four abilities. Namely, ability of the adversary, appropriateness of the plaintiff, ability to carry out a lawsuit, and ability to plead which are the necessary requirements to proceed with the lawsuit appropriately. However, the environmental lawsuits which have the purpose of saving the natural disaster areas, go about arguing the qualifications as to whether you are able to propose a lawsuit rather than the validness of the lawsuit itself and gets blocked most of the time. In most cases, attempts to pass the first obstacle of fulfilling the criteria of plaintiff when trying to file an environmental lawsuit end in failure. The lawsuit procedure structure in Korea which is based on the modern law system has the limit of not fully being able to protect the environmental benefits which has the strong characteristics of being publicly aggressive and objective. The adversary of the environmental pollution is almost always an urban civilian or an agricultural folk who lack specialized scientific knowledge. Not only do most of these people not realize that their health benefits have been victimized by several kinds of environment pollutants but even when they do know the source of the pollutant, they do not have the expertise to possess or obtain the proof. In the case where they can't properly demand their legal environmental benefits, even when they are environmentally violated, they will not be acknowledged as the plaintiff and basically lose even the opportunity to have a fair legal trial. Following these turn of events, there have been several discussions in which they assert that in the environmental lawsuit which has the characteristics of an integrated and modern nature, the right of standing to sue should be expanded so that the victims who have been environmentally violated can be properly protected and saved. In the procedure of an environmental lawsuit, the tendency for the extension of standing to sue is appearing not only in Korea but has materialized in the same format in Germany, France, Japan and so on. Although the ways and methods to extend the standing to sue are diversely different, the tendency to acknowledge the standing to sue is concurrent in each country. Following the protective standard theory which is being formed in Korea or Japan, the scope of the standing to sue is being limited. That is to say, it is stating that the protective standard theory must or should be a standard that protects individual benefits acknowledged by law. This is somewhat different from the French legislative law which acknowledges individual rights with the nation ubiquitously which had been set up through the people's revolution. In addition, this is a point which can be compared to the British law which looks at everything belonging to an individual's freedom and right unless otherwise stated by the positive law following the principles of legal domination. In Germany's case, with the suggestion that the protective standard theory has issues of an environmentally beneficial nature from a legal practical view, several discussions have been underway to expand on the right of standing to sue. Japan's appropriateness of the plaintiff theory is also being developed focusing around the interpretation that there must be a legal benefit when proceeding with a lawsuit. Japan's precedents show a flexible interpretation that says the appropriateness of the plaintiff must be acknowledged even in the case where the legally valuable benefit is infiltrated while at the same time putting importance in the basic legal benefit. Practically speaking, they have the aim of guaranteeing relief afterwards or preventing environmental infiltration beforehand by extending on the standing to sue. In Korea's case, it could be surmised that there have been discussions just like Japan in terms of extension of standing to sue. The supreme court has recently been reconfirming the current interpretive methods of the appropriateness of the plaintiff through the verdict of the Saemangeum case. At the same time, they are not denying the possibility of the expansion of the appropriateness of the plaintiff which takes the legal order and the aim of the legislation into consideration. In light of the complex modern administration procedure, the necessity of the expansion of the appropriateness of the plaintiff is being strengthened even further especially since the collective environmental dispute is occurring constantly. With such developments, the discussions to extend the standing to sue are becoming very active to reduce unnecessary national finance spending and to proceed with environmental preservation policy. The following are the main points of the discussions for the extension of standing to sue. First, the right of specific environmental rights according to the constitution becomes possible with acknowledgement. The environmental rights refer to the right to live in a healthy, pleasant environment. The right to demand the creation of a clean and pleasant environment to the government is contained within this right as well. Within the code of environmental rights constitutionally, by deducing the result of the extension of standing to sue in environmental lawsuits, the constitutional concept of saving the environmental benefit can be realized. With the environmental rights as a basis, the public trust theory may be implemented as well. If the public trust theory were to be legislated, the citizens will be equipped with the basic right to demand the protection of the natural resources to the government which should act as the trustee. Secondly, in the legislation sense, it is possible to proceed through article no. 12 of the public administration lawsuit law. The supreme court has already had a case where it submitted the revised bill of the public administration lawsuit law to the National Assembly to comply with the demand of the modern society followed by the extension of standing to sue. Although the public administration lawsuit law's revised bill with the contents of the purpose of expanding the range of the appropriateness of the plaintiff expired with the termination of the term of office of the 17th National Assembly automatically, the discussions for revision to protect the environmental benefits in a practical and specific way should continue. Under the current public administration lawsuit law, the appeal can only have an objective characteristic and in that sense, it would be advisable to change the term 'legal benefits' under article number 12 of the public administration lawsuit law into 'justifiable benefit'. Thirdly, in relation to large scale environmental group dispute such as the 4 river project, I believe there is a need to implement a collective lawsuit system not unlike that of America's or Germany's class action suit or civil suit. The environmental disputes in most cases occur as a complex series of events in various fields such as soil contamination, urban development, and toxic substances. In the case of a group environmental dispute, it might be logical to choose a method whereby a certain environmental group is selected and given the standing to sue. In the environmental law field, the positive function of the collective lawsuit should be considered, and if we were also to take into account the fact that some environmental groups have become considerably specialized, even when the right to standing to sue is given to the environmental group, it is judged that they will do an excellent job of preserving the natural environment. Having said that however, in terms of selecting the environmental group, there needs to be a stricter and more justifiable standard to block out any side effects such as suing too many times over the limit. Fourth, the natural rights lawsuits which are in the spotlight now as the new type of nature preservation should be investigated further. The natural rights lawsuit began in earnest in the USA and commanded an extensive social interest in 2003 with the 'Salamander Case' which eventually triggered a lot of active arguments. The natural rights lawsuit is a method where the nature or the natural objects itself becomes the adversary and carries on with the lawsuit. The human being becomes a spokesperson for the nature, and judges the benefit that nature has been forfeited with and thus can demand a just judgement. The natural rights lawsuit is the most controversial dispute in the sense that it goes against the positive law system. From the view point of putting importance on the ecological environmental law, it suggests an opinion that only by implementing the natural rights law can the natural environment protective system be firmly established. In the event of implementing the natural rights lawsuit, from a legislative theoretical view, it would be logical to choose the spokesperson from environmental groups, scientists groups or a statutory guardian to legally represent the specific natural being. It would be impossible to implement the above mentioned extension of standing to sue methods of environmental lawsuits in Korea as it is and realistically speaking, it would be highly inappropriate to say the least as it currently stands. If we were to take a closer look from a totally practical point of view, out of these methods, the giving of rights of standing to sue to an environmental group specifically would be the most feasible. Since the collective lawsuits regarding stock bonds or consumer collective lawsuits are already underway, the most urgent priority should be in proceeding with legislating the policy where environmental groups which can protect public benefits is selected through appropriate standards so that they can go ahead with the procedure for environmental lawsuits.