환경보호조항의 헌법적 수용 - 독일기본법 제20a조와 대한민국헌법 제35조의비교를 중심으로 -

Abstract

Protection of environment is a fateful task of modern state in order to cope with climate change as a result of carbon dioxide emissions. Carbon dioxide Capture and Storage(CCS) technique is in the world limelight as one of important means for reducing carbon dioxide emissions. Reviewing history of constitutions of the world, there were few cases including Spain and Republic of Korea in which environmental protection was provided as a form of fundamental right in constitution. It is necessary for us to look into types of environmental protection in constitution. We tried to analyze which type is more suitable between article of goal of state and article of fundamental right in this essay. Common interests at the environmental issue were reflected in constitutional articles but there is practical necessity to distinguish between two types of articles because direction and responsibility of the state actions, normative power of an article. That’s why much discussions were made in Germany surrounding type of environmental protection article in constitution for more than 20 years. We compared general natures of article of fundamental right and article of goal of state and then analyzed which type is more appropriate to achieve conservation of environment without hampering normative power of Constitution. An article of goal of state is focused on obliging specific action of state with specifying the directions and goals that state should pursue. For example, in German Basic Law, Article 20a states that “The state, also in its responsibility for future generations, protects the natural foundations of life and the animals in the framework of the constitutional order, by legislation and, according to law and justice, by executive and judiciary.” and grants the active duty of the state to do concrete actions in order to protect natural environment and ecosystem. The protection of rights is essential point of article of the fundamental basic right. For example, article 35 in constitution of Republic of Korea states that “All citizens shall have the right to a healthy and pleasant environment. The State and all citizens shall endeavor to protect the environment.” and all citizens can raise a lawsuit against the state in case of violation of environmental rights. The article 35 (2) states that “The substance of the environmental right shall be determined by Act.” as an abstract sentence, so it can be interpreted that article 35 (2) is considered as an exhortative article rather than a specific obligation that state should conserve environment. Political and social situations of each country are different and normative power of constitution of each country is different also. Therefore, an absolute appraisal standard which can apply to every country might not exist. Systematic study and consistent interest in constitutional environmental article should be made with open minded.