토양환경보전법상 오염원인자 조항의 위헌성과 위헌성 제거방안

Abstract

The provision of “polluters” under the Soil Environment Conservation Act is faced with a critical moment. Its application has been stopped immediately by the decision of the Constitutional Court. The provision has repeatedly received warnings of unconstitutionality which were mostly overlooked. If only it were clear what retrospective liability there is, I believe the related provision could have avoided the unconstitutionality. And if only there were some legislative considerations - like the de micromis exemption, landowner’s supplemental liability and limitation of liability - the provision could have avoided its worst situation of being suspended from application. The decision made by the Constitutional Court is no more than the explosion of cumulated controversy surrounding the provision of “polluters”. At the same time, I think that this moment could be an opportunity to turn misfortune into a blessing. The decision made by the Constitutional Court has given a chance to amend not only the problems that already exist, but also the ones that were about to emerge. The two decisions made by the Constitutional Court may seem to deal with two different issues - one on the subject of retrospective liability and the other on the violation of the principle of prohibition of excessive burden. Yet, they both recognize that the related provision is being overly burdensome to responsible parties concerned. The amendment of the related provision can no longer be evaded. In order to amend, just like the Constitutional Court has pointed out, there must be sincere reconsideration of the burdensome liability. This is related to the issue on the allocation of liability which leads to the problem of deciding who should bear the expenses for remediation and how it should be distributed. In this perspective, some prudent legislative considerations, such as, the extending statutory defenses, setting liability order among responsible parties, recognizing of the cost recovery action, limitation of liability, contriving financial means including funds to ensure liability, and arranging settlements are necessary. What is important here is that too much mitigation of liability can make a wreck of the provision of “polluters”; but to solve the problem superficially and not fundamentally can lead to another crisis. Regarding legislation, it is also important to note that what may be good to foreign countries, may only cause more confusion if it does not fit to our country. Hasty reformation can produce another side effect, just like how the CERCLA brought about today’s situation through its tactless imitation.