공익사업시행지구 밖 환경피해 구제의 한계

Abstract

Environmental damages incurred outside public works implementation areas are losses which result from noise, tremors, depletion of water, encroachment of daylight, etc. that occur during the implementation and after the completion of public works. Currently, remedies against environmental damages incurred outside public works implementation areas do not have any basis to claim compensation for damages. Most cases are dealt with by submitting civil complaints with the Environmental Dispute Resolution Commission or the Civil Rights Commission, or by filing a civil lawsuit. However, with respect to remedies against environmental damages incurred outside public works implementation areas, it is difficult to establish the causal relationship between the cause of the loss and the loss itself in the case of filing for compensation for damages under the State Compensation Act or under civil law. Also, corrective recommendations or opinions issued by the Civil Rights Commission display limitations as a legal remedy because of its lack of direct enforceability. Environmental damages incurred outside public works implementation areas are situated in a gray area between compensation for loss and compensation for damages. As a result, environmental damages caused by public works are in fact in a blind spot in terms of available remedies. Therefore, environmental damages incurred outside public works implementation areas were foreseen from the beginning and even if they fall within the acceptable limits, the property losses resulting from such damages are considered to be of a special sacrifice. This is based upon lawful acts and it is advisable to deal with such damages by considering such act as the subject of loss compensation by placing more emphasis on the aspect of protecting civil rights. However, if a compensation provision is newly enacted when the criteria for determining which cases of environmental damages incurred outside public works implementation areas form a special sacrifice is not clearly defined, side effects can be anticipated from such enactment. Therefore, it is determined that the legalization of compensation for environmental damages incurred outside public works implementation areas should be gradually progressed starting from the part where the environmental damages can be standardized in order to minimize any side effects.