환경행정소송에서의 원고적격 확대와 그 한계

Abstract

Today, the debate on extending standing to sue in administrative litigations regarding environmental issues is becoming an important issue. An theory on relief benefit set by law that a majority opinion and precedents currently follow limits the scope of standing to sue to specific and direct benefits protected by law. This theory is not proper in solving legal problems related with today’s environmental issues. Thus although the plaintiff has only a de facto benefit but it is considered a legally worth conserving interest, standing to sue is necessary to be admitted. Additionally, a wide scope of environmental violations, the magnitude of damage and the necessity of victim relief necessarily demand the standing to sue of third-party to be actively admitted. Korean Supreme Court negates a concrete entscheidungsnorm on the Korean Constitution Article 35(environmental rights). However, recognizing a concrete entscheidungsnorm of environmental rights is necessary in terms of expanding the scope of standing to sue which is discussed in the name of expanding rights remedies. The current legal system in Korea does not acknowledges nature, animals or future generation to have a right of standing to sue. However, environmental NGOs having a right of the standing to sue or eligibility to sue in a lawsuit can be guaranteed by revising Environmental Impact Assessment Act. Thus, such legislation is actively to be considered.