환경권의 역사와 사법상 정립에 관한 고찰

Abstract

Numerous types of current environmental conflicts are one of the tasks to be solved by laws. Although our laws have solved many of them through various laws and precedents, they have not been yet satisfactorily solved. In addition, the environmental right has been the monopoly of public law until now, while the private law has taken a passive stance on this issue. On the basis of this problem awareness, this paper aims to make a legal-historical study on the environmental right and to establish the environmental right as a new right under the private law, based on the result of the study. With regard to this, history of the environmental right was first discussed in the main text of this paper. This showed us that mankind has recognized the environmental right as a right for a long time and has established a diversity of provisions to handle the relevant conflicts, regardless of the public law and private law. Second, the meaning and the legal nature of the environmental right were discussed. In other words, this study discovered that an environmental benefit is a right, not a simple benefit, and that the environmental right is shared by both sectors of the public law and private law. Furthermore, it was found out that the environmental right, as a private right, is an integrated right which has the legal nature of both property right and personal right. Lastly, a few discussions were additionally conducted to establish the environmental right as a new right under the private law on the basis of above discussion. The precedents deny the environmental right under the private law on the ground that there is no express provision pertaining to the environmental right and that the specific contents of the environmental right have not been yet established compared to other provisions and reason of nature. Thus, this paper discussed the details of the environmental right such as the subjects, objects, contents, exercising methods and remedial method of the environmental right. Mankind will be confronted with various unpredictable environmental problems in the future, and their measures should be prepared both by the public law and private law. Accordingly, it is more than necessary to set up a theory on the environmental right under private law which is relatively not sufficient enough. There are still a lot of obstacles to accepting the environmental right as a right under the private law. However, it is thought that the current attitudes towards the precedents and the citizens’ legal awareness are mature enough to accept the environmental right as a new right that had existed under the private law but has long been forgotten. It should be noted that acknowledging the environmental right under the private law is a consistent way to solve the various problems associated with the environmental right.