생태손해배상제도 도입을 위한 협의제도 고찰

Abstract

The recent climate crisis and COVID-19 experience urge us to transform our human-centric to eco-centric environmental law system. To recognize the natural resources damage could be a stepping stone for such paradigm shift. We do not have a specific and separate law on natural resources damage however, we do have the Act on Liability for Environmental Damage and Relief. The article 14 of the Act mentions the natural resource damage and restoration obligations, therefore, it is worthwhile to analyze the effect of the provision. The sole provision of the article 14 of the Act is too simple to use in the natural resources damage litigation and have the court’s recognition, the paper seeks to address the possibility to use the alternative dispute resolution. Until the separate law on natural resources damage is enacted, the Environmental Dispute Mediation Commission could be a good venue to explore the natural resources damage as a transition plan. For this path, the Environmental Dispute Mediation Law should be amended as follows. First, the law needs to stipulate the definition of the natural resources damage. For the introduction of the natural resources damage, the Environmental Dispute Mediation Law needs to include the concept of natural resources damage in addition to its existing environmental damage. Second, the law needs to be amended to stipulate the restoration should be considered first and the said amendment should be done at the article 41 of the Environmental Dispute Mediation Act (Restoration to the Original State). Furthermore, the details of the restoration methods and approaches as well as the calculation of natural resources damage should be developed under the environmental dispute mediation commissions. Third, the Environmental Dispute Mediation Law should expand the Ex Officio Mediation cases under the Article 30 and allow the commission to start the mediation process as to the natural resources damages. Fourth, the environmental NGOs should be allowed to initiate the natural resources damage cases when there is no personal interest involved therefore no legal person interest. To amend the Environmental Dispute Mediation Law is meaningful for some reasons. It could encourage more and more natural resources damage cases to be discussed at the public forum during the interim period until we have a new law on natural resources damages specifically. It could also encourage to expand the scope of the environmental dispute mediation commission so that it could have an impact on new type of environmental disputes. Although natural resources damage is yet to be recognized in a full scale by the courthouse, it is still meaning to take a one step by using the environmental dispute mediation law.