소급적 토양정화책임의 위헌문제 ― 미국 판례와 CERCLA상의 논의를 중심으로 ―

Thousands of sites have been contaminated by previous industrial use, often associated with traditional processess which are no longer used. These sites may present a hazard to the general environment, but there is a growing need to clean up. There are urgent and potential harm to human and ecosystem because of soil contamination, however it is not easy to discover the soil contamination. There was growing environmental concern of soil contamination so that Korean Soil Environmental Conservation Act (SECA) was enacted in 1995. SECA modeled the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA) of U.S. which was urgently enacted to cope with environmental crisis such as Love cannel. There were not many SECA cases in Korea compare to U.S. Recently, however, consitutional challenge against retroactive liability of SECA was filed in Constitutional Court. Generally interpreted, national assembly intended SECA to apply retroactively as like CERCLA. In US, retroactive application of CERCLA's liability provisions facilitates the cleanup of hazardous active, inactive and abandoned waste sites, and although CERCLA is not expressly defined as retroactive, it may reach pre-enactment conduct. Even without an express statement on retroactivity, courts interpreting CERCLA consistently find that a combination of the statute's purpose, structure and legislative history are sufficient evidence of congressional intent to overcome the traditional judicial presumption against retroactivity. This article outline CERCLA liability and Constitutional challenges and describes the traditional argument of retroactive legislation in part I and II. Part III analyse Supreme Court case which deal with retroactive liability of Coal Act. Part IV compares Coal Act and CERCLA. Finally, This article conclude that retroactive liability of SECA is within the constitutional limit due to features of soil contamination, Korean soil contamination history, result of balancing test, intent of legislation, importance of environment, urgent need of soil clean-up and lesson from various cases of US.