오염토양 정화비용 등을 지출한 토지전득자의 순수경제손실에 대한 토양오염원인자의 불법행위책임 - 대법원 2016.5.19. 선고 2009다66549 전원합의체 판결을 소재로 -

Abstract

On May 19, 2016, the Korea Supreme Court ruled that a soil polluter is liable for damages suffered for clean-up costs to the current landowner, because he/she sold the land without the purification of contaminated land and disposal of waste [KSC, May 19, 2016, 2009da66549 Judgement]. The damage is a pure economic loss without infringement of human life and body, property, etc. Such responsibility is generally called ‘Tort liability in the transaction relationship’. I have examined the adaptability of the Korea Supreme Court's doctrine by analyzing the legal characteristics of Tort liability in the transaction relationship as the new type of Tort liability. As a result, I was able to obtain the following results. First, in general, damages caused between traders on the real estate will be resolved by contractual liability, but Tort liability in continuous transaction relationship is applicable for damages incurred by the current owner in a series of parties to a transaction with the cause provider(soil polluter in this paper). Second, It is preferentially determined whether the actions of soil polluter meet a breach of duty in transaction or not. If the act of polluter is determined as a breach of duty, his/her act constitute illegality. By extension, when the intentional act/omission of a person is connected with the breach of duty, the series act(the act of selling without purifying the contaminated land) are evaluated on an integral basis. Third, If it is deemed that the polluter’s violation of his/her duty is illegal, it is not necessary to be evaluated his/her negligence under Tort liability again. Fourth, when regulations of administrative laws are linked to the infringement of private interests, they serve as the legal duties in social life as citizens. Therefore, I think that the Korea Supreme Court ruling in 2016 stated clearly on the damage of a pure economic loss in "Tort liability in the transaction relationship" as a new type of Tort liability.