환경규제 패러다임의 재편

Abstract

Since the appearance of neo-liberalism in the 20th century late, the trend of environmental regulation reform worldwide has much influenced to the regulatory system 0f environmental law in Korea. Korean Government like the other countries’ Government has tried to reform the regulatory system according to market-oriented mechanism. But the goals of economic and administrative environmental policies are different from the goal of legal principles in some respects. Such differences has given rise to hindrance to the progress of regulation reform. There was basically a gap between economic policy and the legal system for a long time. Economy tries to achieve the efficiency whereas law tries to pursue the justice. Though economists are eager to alleviate the strict regulatory system but most legal scholars and lawy lo are reluctant to abolish the regulation heretofore because of legal stabilng tand equig . The tradition of administrative state theory which backed up the intervention by government into market adhered to endurance of administrative regulation. But the regulatory reform in government regulation was driven unexpectedly by the failure of government. Many governments has endeavored to reform the whole regulatory system but could not succeed fully because new regulations showed up immediately after abolishing old regulations. So it is necessary for the government to stop reforming only the regulatory system within the administrative area and to shift instead thereof the paradigm of regulation. The government should change the regulatory method under the command and control base at present into a new paradigm which recognizes the market or the community as partners. The government should allocate its regulatory matters suitable to the concept of self-regulation or governance to the market or the community. The market or the community also should have an organization and capacity suitable to self-regulate or cross-regulate its regulatory matters together with the government as an equivalent partner. As the sample of paradigm shift in the environmental regulation reform, I would like to surrender the case of cap & trade system regulated by section 46 of the Basic Act of Green Growth toward Low Carbon Society 2009 in Korea which established the market-based emissions trade instead of command & control-based environmental tax system among stakeholders who emit GHGs into the air under the Kyoto mechanism principle. Such trend as flexible system should be expanded to another realms of land, energy, industry and environmental law for reforming environmental regulatory system.