환경가치, 민주주의 그리고 사법심사

Abstract

The purpose of this article is to critically examine judicial restraint review and to assert and defend the necessity of active judicial review in context of environmental lawsuits To this end, first of all, I analyzed that what factors influenced the courts’ decisions in environmental litigations through examining the rulings of Saemanguem cases and Grand 4 rivers cases. As a result of the analysis, it was found that the courts’ appreciations of whether environmental values must be given priority over developmental values and the courts’ perspectives on the limits of self-role to play within the relations with the other branches the Legislative and the Executive decisively impacted the courts’ holdings. After then, in the light of the whole system of constitution law and acts related to environment and development, and with reference to relevant constitutional court’s rulings, I insisted that the value-neutral stance in the interpretation of relevant acts, which seem to be of the majority of the courts in the cases referred to above, should be set aside. Instead I proposed that applicable related acts be construed on the presumption of the prima facie priority of environmental values over developmental ones. And since diffused interests such as environment interests are liable to be under-represented in the realm of politics, which would lead to the malfunction of representative democracy, judicial activism should be more required in the face of litigation addressing environmental interests. Finally, the implications of judicial activism required in the environmental litigations are as follows:(i) On considering that our knowledge and practical experiences with respect to nature’s values are limited and their monetary evaluation is in essence imperfect, inaccurate and so wolde-be incorrect, the development activities might be found rational insofar as the interests created from the development is far bigger than the benefits from the preservation of environment; (ii) the burden of proof is to be equitably allocated to the parties concerned when there are risks of a wide range of and/or irreversible environmental degradations; (iii) the scope of judicial review should not be limited to the legality of activities in question, but be extended to the appropriateness thereof.