環境侵害의 留止請求

Abstract

Traditional harm by an interference such as smoke, heat, noise and quake from the neighborhood usually ended with an agreement between the parties because it was traditionally thought of a kind of private nuisance. However, as industrialization has heated up, the harm by chemical smoke and toxic water from the factories pervades the widespread area and it causes serious legal disputes. And the variation of the range, degree and type of harm requires us to review the legal theories and remedies to cope with the environmental interference. The remedies for invasions of environment generally have two categories such as preliminary and post-factum remedies. As one of the preliminary remedies, injunctive relief is a more useful method than money damages, but the courts may limit or even refuse injunctions for the reasons that if the defendant is carrying on socially useful or economically important activities, the injunction ordering to close the defendant's operation may do more harm than good. Courts should weigh the good over the harm with regard to the industrial aspects to grant a plaintiff's claim for injunctive relief. However, if gross negligence of the defendant(the wrongdoing industry) is proved, courts should issue an injunctive relief with its findings of the fact that the defendant violated the duty to care of a reasonable person. article 217 of the Korean Civil Code as a legal ground for injunctive relief is indefinite in view of some aspects. For example, the text of the Article is too simple and abstract to capture its meaning since it prescribes the phrases such as "something like this, etc", "interfering with the use of the land", "not to inflict pain on daily life", "reasonable measure", "usual use of the land", and so on. Therefore, we need another process to interpret the meaning of the article. In addition, the neighborhood Article has its limits and can not fully solve the problem with regard to private nuisance. So, I argue that to adopt article 217 as a legal ground of preliminary remedies for environmental harm needs some legislative feedback.