환경피해의 구제 - 사법적 측면을 중심으로 -

Abstract

As legal issues arise out of environmental injury in relation to life, health and property, the legal remedies against damages caused by environmental pollution are being discussed. However, these issues have been limited to damages from environmental pollution. Today, in addition to direct and concrete damages of life, health and property from environmental injury, the rights of environments to legally preserve pleasant life are actively in dispute. If rights of environments are recognized, the problem of a forbearance-limit theory can be resolved in an action to recover injury caused by environmental pollution, and can easily obtain injunction against continuing environmental injury. Nevertheless, rights of environments are policy matters and cannot be protected as private rights under the current law which is not accompanied by subsequent legislation. Therefore, further discussion of embodiment and materialization of environmental rights is required to privatize them. In the meantime, repair cost is enormous and complete restoration is impossible in environmental injury. Accordingly, preventive action is important, but when contamination takes place, prompt relief for a victim and timely resolution of dispute seem to be needed with technical efforts for restoration. In this aspect, tort approach regarding legal recovery against environmental pollution has been developed with the appearance of new types of injury. However, the legal relief has the unique feature raised by an environmental injury or environmental disputes and has its inner limitation from the legal relief system. Thus, to overcome such a limitation, in establishing and researching environmental law from the substantive and procedural legal perspective, a concrete method to resolve the issue of environmental injury must be devised in a more reasonable way.