새로운 環境責任法制의 導入과 被害救濟節次의 問題點 ― 특히 「환경오염피해 배상책임 및 구제에 관한 법률」의 내용과 문제점을 중심으로 ―

Abstract

The “Environmental Damage Liability and Remedy Act” was enacted in Korea in order to ensure Environmental liability for pollution damage and the remedy substantially. Especially Article 6 (1) of the “Environmental Damage Liability and Remedy Act” includes the responsibility of the facilities operators for the damage caused in the risk facilities. It is so-called risk liability. In addition, Article 9 of the Act provides the presumption of causality. The victim should prove the cause of this environmental damage caused that could be found “substantial probability”. This concept of a “substantial probability” is to be determined by reference to the standard as defined in Article 9 (2). In this case, the problem is how the criteria used herein, the concept of the “substantial probability” is related to some of the prior case law and theory. There is no choice but to watch the decisions of the Supreme Court for this part, the victim must prove nonetheless in light of the case of the “Environmental Liability Act” (Umwelthaftungsgesetz) of the Federal Republic of Germany. This position may possibly be more stringent than the previous case law theories of probability theory. Therefore, the Court will need to be operated flexibly interpreted this provision as a criterion for determining the presumption of causality. The remedy procedure of the environmental damage is determined indefinitely, and it is not easy to choose the accurate form and subject of administrative proceedings. Even though the adjudication of the appeal proceedings is determined by the Committee on the Environmental Damage Remedy and Policy, the parties is defined as the “Ministry of Environment”. The Liability for environmental damage lawsuit is almost related to the cash payment so that the so-called “parties litigation” (Parteistreitigkeiten) should be guaranteed. Because in administrative lawsuit arguing the appeal for redress the defendant and the action type is still unclear, there is a need to supplement thereto through a future revision.