환경오염피해에 대한 행정적 구제의 실효성 제고를 위한 입법론: 「환경오염피해 배상책임 및 구제에 관한 법률」에 따른구제급여 지급현실에 비추어

Abstract

It has been over two years since the Act on Liability for Environmental Damage and Relief Thereof (hereinafter referred to as the “Environmental Damage Relief Act”) was enacted. This article checks whether the administrative relief system for environmental damage under the Act has been operated in a manner consistent with the objectives and purpose, and proposes appropriate legislative improvements which would lead to better administrative relief system. An administrative relief system, paying relief benefits to people injured by environmental pollution, seems to be progressive. However, the money for relief from environmental damage has not yet been paid, and advance payment of a small amount of relief money has been made to only a few victims. Based on these analyses, this article presented some concrete way to improve the system: First, the element of relationship between installation or operation of facility and damages should be eliminated from the definition of “environmental damage.” Instead, the elements including “human activities” and “exposures to the environmentally hazardous factors” should be incorporated in its definition; Second, a state agency or a local government should be allowed to conduct a investigation of environmental damages, even when a victim did not file an application for payment of relief money; Third, it is required to specify and clarify the requirements for payment of relief money. Introducing a so-called “designated disease” concept should be positively considered; Fourth, an “advance payment” system needs to be reformed to the “special payment” system, and the requirement for payment should be more specified; Fifth, non-monetary relief should be able to be granted in addition to or instead of a payment of relief money; Finally, it needs a reasonable financial system, including a so-called “Environmental Damage Relief Fund”, consistent with polluter-pays principle.