한․중 환경기본법 비교 - 중국의 「환경보호법」을 중심으로-

Abstract

Both the Environmental Policy Basic Law of Korea (1990) and the Environmental Protection Law of China (1989) are fundamental laws in an environmental field. Korea's environmental basic law is a fundamental law and yet it is not superior in effect to other individual environmental laws; Rather, it is used as a guide in construing individual environmental laws and plays the role of presenting the direction in shaping legislative policies. In China's legal source system, there is a unique legal source superior to general laws, the Environmental Protections Law is not a basic law but a general law and is construed to be positioned in basic law and to perform the functions of the law. Korea's law is a policy law in principle and a regulation law to some exception, whereas China's law is a regulation law in principle and a subsidiary policy law designed to aid the economic development. In China, Environmental Protection Law remains at the level of antipollution law, which is based on legislative principle that the disruptions are incidental expenses to economic development, and the provisions of the law are somewhat lacking in contents as well as in effectiveness and the law focuses on control of the pollution and compensation for the damage. The principles of Korea's law is prevention and precautionary, polluter pays, sustainable development, public information and such others, whereas that of China is mainly, government pre-regulation and developer pays and has no provisions as for sustainable development. Korea is moving towards legal improvement while keeping away from proclamatory regulations in environmental law and consolidating the functional relation. China is reinforcing the guarantee of the environmental rights, relief system, correspondence to WTO system while promoting to enact the 'Environmental Basic Law' that is true to its name, a basic law higher in legal source system.