폐기물 해당 여부의 판단 기준 구체화를 위한 입법론

Abstract

The Wastes Control Act defines “waste” as the substances that are “no longer useful for human life or business activities.” This abstract and ambiguous definition often leads to vigorous disputes over what substances constitute waste and what activities fall within the scope of the Waste Control Act. This article aims to show a legislative solution for defining the concept of waste, setting up specific criteria that determine what it is, while ensuring that the existing concept interpreted by competent authorities and the courts are not confused or narrowed. To achieve this, this article has analyzed the concept of waste under the current legal system as well as administrative and judicial interpretations of its definition. It has also analyzed judicial precedents and administrative documents concerning the criteria that must be met to determine what waste is in Japan, which has almost the same definition of waste as South Korea, aiming to get some lessons from them. Based on these analyses, this article suggests several legislative alternatives to set up specific criteria to determine what waste is more concretely. First, it is necessary to introduce the need for disposal as a conceptual factor for waste. As stated in many previous studies, many countries including the European Union, Germany, and the United States accept the discarding of waste as a conceptual factor. By introducing the need to discard or dispose of waste as a criterion, existing interpretations of the courts as well as the Ministry of Environment can be explained more clearly and logically. To determine what constitutes waste, the following factors should be taken into consideration: (i) the physical or chemical nature of the substance; (ii) the process of generation or its intentionality; and (iii) the threat of environmental risk. These factors can be codified as: (i) any substance or object that has become unusable for its original purpose or intent due to changes in its nature, deterioration in performance or quality, or other reasons; (ii) any substance or object that has been made unintentionally in the courses of the manufacture, repair or sale of products, the supply of energy, the engineering and construction works, or other courses of a series of operations; (iii) any substance or object that is likely to cause environmental risks due to scattering, discharging or leaking, malodor, damage to the scene, or other reasons without proper disposal. Also, it should be emphasized that the commercial value or hazard of the substance or object in question cannot be legal criteria in determining waste. It is important to note that none of these factors can be the only absolute criterion for determining waste. In other words, although a substance or object may fall under any of these criteria, it might not be regarded as waste under special circumstances, that do not require its disposal. Therefore, the legislative alternative of codifying them should leave open the possibility of reconsidering whether it is necessary to dispose of the substance or object.