기후변화시대의 불법행위법 - 기후변화대응 정책수단으로서 불법행위소송의 장·단점 및 발전방향에 관한 소고 -

There is overwhelming scientific consensus that climate change is in progress and that increased carbon dioxide concentrations is one of its major factors. This climate change causes damages such as ① rises in sea-level, ② melting permafrost, ③ heat waves, and ④ hurricanes; and these damages not only cause property damages, but also communal harm or cultural damages. Current responses to climate change consist of two major trends. First one is the policy response, which includes agreements between nations and domestic policy. Second one is the legal response, which includes both public law response such as emissions trading act, and also private law response such as tort litigation. It seems that tort litigation is the most effective way to recover private litigants' losses caused by climate change. It is clear that within traditional tort law, it is difficult to: determine the identity of the tortfeasor who caused the plaintiff's loss, prove the causation between the defendant's actions and the plaintiff's loss, and evaluate the damage itself. This is because, unlike traditional tort law principle, climate change has new characteristics as a risk problem such as its complexity, uncertainty, extensiveness, and policy-relatedness. Tort litigation as a response to climate change has its own unique significance. First, tort litigation enhances regulatory policy making. That is, tort litigation may inform the seriousness of the matter caused by the climate change to the public, and it also allows the policy-making institution to place this matter as its major priority. Second, tort litigation carries out many social functions, such as allowing courts to provide corrective justice by compensation, creating incentives to avoid future harmful activities and risks. However, it is essential that tort law should be under a paradigm changing reformation in the era of climate change. First of all, each individual and company should recognize that not attempting to reduce CO₂ emissions is an immoral and illegal act in itself, and not just a mandatory public interest cooperation. When determining whether defendants should be held liable for plaintiff's damages or not, judges should make an effort to examine the seriousness of the climate change and its systematic relations. And in the case of climate change litigation, there is a greater chance for the court to apply strict liability rather than negligence liability. Also, from the causation perspective, courts need to modify existing theories of causation to solve the risk problems such as climate change, while judges should make substantive decisions on evidences with a sufficient capability to understand the meaning of scientific evidences beyond the adversarial system. Finally, besides the existing calculable economic damages, it is necessary to consider the compensation for ‘communal harm’ or ‘cultural damages’.