환경권과 헌법 개정 – 입법론적 접근

Abstract

This study aims to provide an opportunity for academic debate by articulating revisions to the environmental right clause in the Korean Constitution, in a situation where the possibility of revising the Constitution is increasing. The author, hereby, restructures the fundamental right to a healthy environment from a dynamic view of legislation. First of all, the article examines what the existence of a constitutional right provision in the Constitution mean, and analyzes what the limitations of the environmental rights clause in the current Constitution reveal in regards to its interpretation practice. According to the analysis the existing environmental right clause of the Korean Constitution has no more than abstract function and ultimately fails to legitimately reflect the changes of social opinion. Based on these arguments, the author discusses how to revise the present environmental right clause to cure its limitations. The author considers the necessity whether to give conreter form to the clause and supplement the environmental provisions aimed at environmental protection as a State goal in the Constitution. The study conclusively proposes a revision of the fundamental right to a healthy environment as follows: [Article ○] ① Everyone has the right to enjoy the environment necessary for a healthy and pleasant life. ② The State shall prevent environmental pollution and protect the natural resources and animals with all required efforts. ③ The State and all citizens shall be mindful of their responsibility toward future generation.