환경영향평가법상 협의에 대한 고찰

Abstract

Although terminologies as used in the Administrative Law and administrative law practices can or should be differently defined in terms of theory and law practices, they have been used in a mixed or confusing way without placing any difference in their definition between the two different aspects. This is also true of the terminology “consultation” as used in the Act on Environmental Impact Assessments (“EIAs”). Some go as far as to interpret it into the “act of seeking advice,” which couldn’t be found in any of judicial precedents that have ever been recorded in relation to the same act. Others who deem it as just a part of administrative procedures make a ruling that any enforcement or execution against the opinion of the Minister of the MOE (Ministry of Environment) about EIAs couldn’t be deemed as illegal. This is why and where there is a need to define the terminology “consultation.”There have been lots of changes in the conceptual meanings of “consultation” as legally provided in relation to EIA. Actually, logical grounds on which the terminology should not be interpreted as just the act of seeking advice, as provided otherwise in other judicial precedents or laws, has been brought forth. This suggests that an EIA report is mandated to go through a “consultation ” with the Minister of the MOE. However, the results of the said consultation will have substantial influences on project owners or affected people residing in a target area legally subject to EIA. In this study, accordingly, it was reviewed from various standpoints whether an award on the results of the consultation or a notice of such award could be given any legal enforcement. On top of that, the problems of current institutions with the aspects of “consultation” were analyzed, and then relevant recommendations or improvements were proposed.