환경상 유독물질 오염으로 인한 인적 피해의 행정적 보상제도 - 미국의 논의를 중심으로 -

The growing accumulation of hazardous substance in environmental context poses a tremendous threat to the health and safety of the citizen. Yet, for many reasons, existing tort law remedies generally provide a imposing barriers to success for tort victims to litigate against toxic polluters. To overcome the conventional tort law’s inadequacy to compensate the victims, new approaches have been called for in Japan in 1970s and U.S. in 1980s. In U.S. the Comprehensive Environmental Response, Compensation, and Liability Act of 1980(“CERCLA”) created a Study Group to examine alternative regimes for compensating the victims who suffered injury due to non-occupational exposure to hazadous substances. The Study Group recommended that Congress enact legislation establishing a federal agency which would manage the compensation regime, providing rapid reimbursement of medical expenses and limited compensation($2000 per month cap) for loss of earnings. In order to be entitled to recovery, a claimant could refer to a “toxic substances document” prepared by a federal agency. In this regard, the difficulty of showing causal relationship between pollution exposure and personal injury could been substantially lessened. The fund from which compensation should be paid was proposed to be made through a special tax on petroleum and the generation of hazardous substances. Unlike japanese approach which provided most comprehensive administrative compensation scheme through “the Pollution – Related Health Damage Compensation Law of 1973”, the Study Group’s proposal got nowhere in federal level. However, at least two states had established an administrative compensation system for victims of toxic substances, that is, California’s Hazardous Substance Account Act of 1981 and Minnesota’s Environmental Responsibility and Liability Act of 1985. These compensation schemes provide medical expenses, loss of earning to the victims of hazardous substance from administrative compensation fund and several merits on the rapid and easy compensation procedure. In contrast to the Study Group’s proposal, a kind of formal hazard assessment document prepared by a state agency was not considered as a means of causation presumption.