토양환경보전법 토양오염부지 소유자의 정화책임 조항에 대한 헌법불합치 결정(헌재2010헌바167사건)에 관한 소고

Abstract

The Constitutional Court, in the case 2010Hun-Ba167, decided that the provisions of Article 10-3(3)2. of the Soil Environment Conservation Act (2002) were inconsistent with the Constitution. This case was developed when the mayor of Masan city issued the cleanup order against the landowner who rented his land to the operator of the gas station as the soil underneath was revealed contaminated by leak of petroleum from the underground storage tank of the gas station. The Constitutional Court held that Article 10-3(3)2. of the Soil Environment Conservation Act, which imposes the responsibility to cleanup on the landowner for owning the land at the time of soil contamination, infringed the landowner of the property right and equal protection of law. According to the Constitutional Court, it was the infringement of the property right to ask the owner of the site nevertheless he was not involved in the contamination to take responsibility for cleanup to exceed the value of the land. And furthermore, the Court found that it was an infringement of the equal protection of law to provide indemnity for innocent no-fault landowners unlike their successors of the contaminated land. Standards and practices of Judicial review regarding the violation of property rights and equal protection of the Constitutional Court are so vague and flexible that it is hard to predict. In the case of Masan gas station, the Constitutional Court has undertaken an unprecedented rigorous examination, but it has not provided sufficient grounds for the process leading to the conclusion. On the contrary, just two years before, in a parallel case the Constitutional Court came out with completely opposite decision. In the Soil Environment Conservation Act, imposing cleanup responsibility on the landowner in addition to actual polluters is crucial for the expeditious cleanup of contaminated soil. It is also a decisive policy of the legislature to build the duty of due care of the land and soil on the landowner. Strengthening the environmental obligation of landowners is also a global trend. The decision of the Constitutional Court in the Masan gas station case seems a bit anachronistic in a sense of contemporary development of environmental law.