한국 환경행정소송의 최근 동향과 쟁점, 향후 과제

With regards to dispute resolutions of environmental litigations, in general, there are two main prongs, private and public procedures, and the latter will be reviewed and discussed in this paper in terms of environmental administrative litigation. The ʻʻenvironmentʼʼ case, which is the subject of environmental administrative litigation, if taken as a problem in terms of individual administrative law related to environment and not as a narrow meaning, it is also what this paper takes as an analyzable subject. Likewise, most of the Constitutional Court decisions are analyzable subjects as well. This is because the Constitutional Court will review adjudications on the constitutionality of the disputed statutes or constitutional petitions separately, from administrative litigations brought against the government action based on the related environmental regulations or statutes. The significant precedents of the environmental administrative litigations in recent years are categorized by issues and facts under discussion in this paper. By reviewing the precedents related to the polluter pays principle, especially in the case of environmental improvement charges, it is necessary to take into account a more fundamental measure where one does not have to do a restricted action, rather than allowing banned actions in exception and eliminating financial burden. Besides, the litigation requirement section in this paper reviews the precedents involved standing to sue and administrative disposition. It seems that courts take a consistent attitude by reconfirming the standing requirements without significant change. Therefore, it is about time to mitigate the requirements in public level at least to the extent of standing to sue in environmental administrative litigation when it comes to subjective interest or self-relevance. Meanwhile, the precedent related to suspension of execution, as one of provisional remedies, if allowed monetary relief, does not recognize suspension of execution. Thus, without self-relevance elements, it blocks the relief of right which leaves much to be desired. In relations to authorization and permission, even if there is no explicit ground for rejection, it is clear that the rejection should be justified by public interest in the precedent. Furthermore, in relations to prior environmental review of preventive principle and environmental impact assessment, the precedent has hospitality about the violation of procedure and poor evaluation, and this dilutes the main object of environmental impact assessment derived from social agreement that weighs more values on prevention than ex post facto relief. Finally, regarding the definition of waste under Wastes Control Act, the precedent takes unified and consistent attitude and shows a decisive manner toward the environment protection in dealing with abandoned waste. Recently, the lower courts show remarkable breakthrough on the acknowledgement of environmental right and standing for environmental interest, while the Supreme Court of Korea remains calm and slow over them. In general, it seems that environmental acts and administration in Korea has begun to show a tendency toward conservatism due to the current government policy and the worsened economic situation. In short, it is not desirable for the government to adopt extreme environmental priority, but at least, it is required to perform the environmental administrations within the framework of sustainable development through which environmental act is developed.