환경권의 제한, 형성, 보호 개념에 관한 연구 - 기후변화 소송에의 시사점 -

Abstract

The concept of ‘limitating’ fundamental rights pertains to actions taken by the government that diminish the extent to which these rights can be exercised, as compared to their scope prior to the government intervention. Government actions also result in an extension of the scope of fundamental rights. This extension includes broadening the scope by determining the area that are not explicitly stipulated in the Constitution and protecting the area from the intervention by entities other than the government. The former is ‘fulfillment’ and the latter is ‘protection’. Whether fundamental rights are being violated due to the ‘limitation’ is evaluated by the principle of proportionality. For cases involving ‘fulfillment,’ the appropriate standard is the abuse of discretion, and for cases of ‘protection’ the principle of prohibiting under-protection serves as proper standard. When applying this theoretical framework to environmental rights, which are comprehensive fundamental rights, the government’s installing a safety wire in a prisoner’s room constitutes a ‘limitation’ of environmental rights. Whereas the government’s intervention of regulating noise emanating from election campaigns is a protection of environmental rights. Within the realm of climate change litigations, especially about the legislation governing carbon emissions, the fundamental rights in question is the right to live in a stable climate. This right is derived from the right to live in a sound environment stipulated in Article 35, Paragraph 1 of the Korean Constitution. The carbon emission regulation by 2030 constitutes a ‘protection’ of the right to live in a sound environment, which means the appropriate standard for evaluating the constitutionality is the principle of proportionality. The legislative omission of the carbon emissions after 2030 is a ‘limitation’ of the right to live in a sound environment, and the principle of prohibiting under-protection serves as the proper test standard. In both cases, the intensity of review should be more strict taking the state’s obligation to make efforts to protect the people from the risk of disaster stipulated in Article 34, Paragraph 6 of the Korean Constitution and to permanently secure the safety, freedom, and happiness of our descendants articulated in the preamble to the Constitution into account.