토양오염의 유발과 폐기물의 매립으로 인한 불법행위성립에 대한 연구 - 대법원 2016. 5. 19. 선고 2009다66549 전원합의체 판결 -

Abstract

The meaning of land is special. We all have the responsibility to use the limited land cleanly and hand it over to future generations. In this respect, land pollution is a very important issue not only for us living in the present, but also for our future generations. Therefore, the judgment of the Supreme Court (2009Da66549), which we have discussed in this article, is very meaningful. The ruling has also been dealt with for a long time and contains a very large amount. It seems to be related to the value by justices in the Supreme Court and the power of judgment in our society. The outcome of this judgment itself could be welcomed. However, there are some logical inconsistencies in the process for the results. The key point is that the pollution act and the sale act are distinguished not only by the act itself but also by the fact that the subjects of the acts are obviously distinguished. In my opinion, the Supreme Court overlooked this key point. Therefore, in this paper, it was argued that illegal acts should be judged by distinguishing pollution act and by trading behavior. In addition, it was confirmed the meaning of the public law in field of the private law. It is quite obvious that the individual characteristics of public law and the private law can’t be denied. Nevertheless, it is not difficult to find recently that the public law penetrates into private law, or that the private law extends to the realm of public law. Therefore, it is considered that setting up the relationship between them is one of the most important tasks in academia. Especially, considering that the standard of judging illegality in relation to tort is contradictory to the principle of the whole law, it is not necessary to deny the function of public law in the realm of into private law. Rather, there is a need to concentrate research on the discussion of area setting and limitations.