환경침해의 위법성 판단과 수인한도의 법리에 관한 연구

Abstract

In the judicial relief on environmental invasion, an illegality is an important element. The Judgement of an illegality in general settles the theory of the endurance limit. An illegality is to be against the endurance limit. As an illegality standard, we have to bear a certain level of environmental invasion each other in our communal living but for illegal environmental pollution above a certain level; it has been considered the endurance limit as a standard. This theory, attempt to determine when environmental invasion exceeds the endurance limit, taking into account all relevant circumstances, including as the extent of the harm involved, the character of the harm involved and social valuation thereof, the suitability of the conduct to the character of the locality, priority in utilization of land, practicability of preventing or avoiding the invasion, the matters relating to breach of public law, and so forth. Basically it balances all relevant interests, heavily relying on the fundamental concept of equity. Any judgment on whether environmental invasion exceeds the endurance limit should be conducted by balancing all relevant factors, such as the specific characteristic and types of interests violated against factors of nuisance.