자기 소유 토지에 토양오염을 유발하고 폐기물을 매립한 자의 민사상 불법행위책임에 관하여 - 대법원 2016. 5. 19. 선고 2009다66549 전원합의체 판결 -

Abstract

In modern society, as damage caused by environmental pollution such as soil pollution or waste disposal is widespread and continuous through a long period of time, there is a risk that the damage extended to a large number of victims. In light of the importance of the prevention of soil pollution the verdict has its own meaning in that it can expand the civil liability of contaminated soil behavior and reflect the social environment severity. However, the logic of the verdict has some problems. It does not comply with the existing legal principles regarding the causal relationship between conduct and damage to own property as well as cause and effect theory. The self-damaging acts for land ownership is difficult to recognize the illegality. And blaming for selling it to another person does not correspond to the free disposal of private property. Actually, we can sell or buy the contaminated land without any legal problems, so the logic that the seller is responsible for it even to the last owner is not difficult to understand. Throughout the commentary, I tried to evaluate the verdict at the point of general tort in civil law. First we have to blame the polluter for not doing purification duty or waste removal obligations. Second the tort through omission by the polluter would be an appropriate cause to victims damages. And it makes us understand the significant causal relationship between cause and effect. Moreover, tort through omission does not stop the process of the extinctive prescription. We can establish the law that define the scope of the civil responsibility of the pollution causing such harm in order to preserve the environmental pollution. We look forward to the development of the logical structure of the verdict on the basis of the critical review of the subject in the next sentence environmental disputes.