2014년 개정 「토양환경보전법」에 따른 토양정화책임조항에 대한 평가와 전망

Abstract

Recently, the Constitutional Court ruled that the contested provision of the Polluter Clause under the Soil Environment Conservation Act (SECA) was unconformable to Constitution, violating equal protection principle, confidence protection principle and proportionality principle. And in order to remove unconstitutional elements from the SECA, it was amended on March 24, 2014. This study tried to analyze the liability for clean up contaminated land under the amended SECA. First, it made a sharp distinction between civil liability for damages and clean-up liability under public law. Second, it replaced the term “Polluters” with the term “Parties liable for clean-up”. Third, it defined the second type of Polluter as the owner, occupiers or operators, not at the time of ordering to take cleaning-up measures, but at the time of occurrence of soil contamination. Fourth, it exempted person who purchased the contaminated land before January 5, 1996 from the liability. Also it enabled the competent authority to limit the liability of the person who purchased the contaminated land between that point and 31 December 2001. Fifth, it established the right to seek contribution from any other Polluter, set criteria of the exercise of discretionary authority to select one or more from Polluters, and provided financial aid to cover part of costs of cleaning up in order to reduce excessive burdens, in special cases. It seems to me that lawmakers gave some consideration for the SECA’s purpose of ensuring the quick and proper clean-up of contaminated soil and removing hazard or injury to public health and environment, as well as its constitutionality. But, many issues, including the base point of confidence protection, legal priority ranking among responsible parties, and so on, remain controversial.