헌법불합치결정에 따른 토양정화책임조항 입법론

Recently, the Constitutional Court ruled that the contested provision of the Polluter Clause under the Soil Environment Conservation Act (SECA) was unconformable to Constitution, violating equal protection principle, confidence protection principle and proportionality principle. This study tried to analyze the Constitutional Court’s decisions and show legislative improvements involving liability for cleaning up contaminated land. Why did the Constitutional Court decide the Polluter Clause was unconstitutional? It was not because it provided that owner, operator or purchaser was included in “Polluter”, but because it put “Polluter” unexpected or excessive liability. In looking for ways to amend the SECA, lawmakers should give due consideration for the SECA’s purpose of ensuring the quick and proper clean-up of contaminated soil and removing hazard or injury to public health and environment, as well as its constitutionality. Based on these aspects, this study presents some concrete ways to amend the SECA, removing unconstitutional elements from the SECA. First, the second type of Polluter should be clearly defined as the owner, occupiers or operators, not at the time of ordering to take cleaning-up measures, but at the time of occurrence of soil contamination. Second, person who purchased the contaminated land before the specific point in the 1970s, should be exempted from the liability. And person who purchased the contaminated land between that point and 31 December 2001, should be subject to the limitation of liability. Third, it is necessary to establish the right to seek contribution from any other Polluter, set criteria of the exercise of discretionary authority to select one or more from Polluters, and provide some ways to reduce excessive burdens, including the limitation of liability or financial aid to cover part of costs of cleaning up, in special cases.