토양환경보전법상의 무과실책임의 원인자 조항에 대한 헌법불합치 결정과 향후 전망

Contaminated soil and responsibility of clean up is currently emerging issue. The corresponding legislation is making progress as well as EIA functions as prerequisite to decide polluter's innocence and faultlessness. This report aims to study strict liability for damages resulting from soil contamination by case study from Constitutional Court. The case analysis shows lack of specific regulation in Soil Environment Conservation Act to impose strict liability which originated from strict liability act which is Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of USA. The Soil Environment Conservation Act shows legislator's concern on prevention of soil contamination and its follow-up action after contamination through soil purification clause as public law liability since soil is one of the public goods. Nevertheless, it is obvious that the aim of the law cannot be attained without financial measures. Moreover, it is inconsiderate to enact strict liability clause without concern on allocation of liability and its process as well as financial instrument for private damage compensation. Since the court have been passive on this issue, the needs of improvement of current legal system such as the enactment of Environmental Liability Law has never been greater. According to the “Unconformable to Constitution” decision on this issue, current system is undergoing improvement progress by relevant ministries. I hope that this process specify the strict liability clause to realize its original purpose.