토양오염피해에 대한 손해배상청구 - 「환경정책기본법」과 「토양환경보전법」을 중심으로 -

Abstract

What is recently being highlighted as legal issue in both academic and executive circles is the problem of soil pollution. Soil pollution means losing function of soil’s original state as various substances that are harmful for soil become accumulated. The soil pollution damage through soil pollution can be classified as the damage of soil itself and the secondary damage of life, physical body and property due to such damage. The claim for damages on such soil pollution damage can only be solved with the legal theory on the responsibility of compensation for damages according to the civil lawsuit. In case soil pollution has occurred, first of all, the sufferer may claim compensation for damages due to the illegal activities in accordance with the Article 750 of the Civil Code. In other words, the sufferer may claim for damages on the occurred damage by proving the conditions of general illegal activities. But in order to claim compensation for damages pursuant to the Article 750 of the Civil Code, the sufferer has to prove deliberation and negligence of assailant, illegality of harmful act or the causal relationship between harmful act and occurrence of damage. Accordingly, the sufferer claiming compensation for damages by proving all these things reveal limitations on the protection of sufferer. Therefore, a special legal theory is being developed in proving deliberation and negligence of assailant or causal relationship in order to protect the sufferer in theories and legal precedents. Even in our recent legal precedents, there is an example of acknowledging the compensation for damages liability on the soil pollution damage based on the liability of structure. As the Framework Act on Environment Policy Article 44 provides the ‘strict liability of polluter’ on the environmental pollution, one would be able to claim compensation for damages based on the Framework Act on Environment Policy Article 44 in case the soil pollution damage has occurred. As the Soil Environment Conservation Act Article 10-3 Paragraph 1 provides that “When there has been a damage due to soil pollution, the applicable polluter must compensate the damages and purify the contaminated soil”, the strict liability and liability of purification are provided on the soil contamination damages. The strict liability provision of polluter in accordance with the Soil Environment Conservation Act Article 10-3 can become very useful means for the sufferer. Therefore, damages caused by pollution at workplace are eligible for compensation as long as the causal relationship between the harmful act and the causal damage are proven. However, as mentioned before, this causes many problems. Even if the existing regulations are amended as Article 44 of the “Revision for EPA,” submitted as government bill in May of 2009, it only adds problem on top of another one. Enactment of this Environmental Responsibility Act mainly focuses on compensation to victims for damage, but also has preventive function for infringement. Strengthening environmental responsibility through strict liability in Environmental Responsibility Act not only entrusts environmental protection to regulations, but also corresponds with the general tendency that inserts the market economic measures. That is, through rigorous environmental responsibility, the burden in environment-hazardous production process eventually will lead to development of environmental-friendly production and process.