물법의 진화와 그 방향- 미국 수리권의 진화와 공공신탁이론의 전개과정을 중심으로 -

In the Unites States, Eastern and Western areas have developed water rights in their own ways. Recently, in keeping with increasing demand for water as a result of population growth and industrialization, efficient distribution of water has become the top discussion agenda for water law. Both riparian doctrine and prior appropriation doctrine have evolved to address the need for efficient water distribution. The public trust doctrine is a theory that has played a critical role in the history of water law. Some states reflect the doctrine expressly in their constitutions. Although critics argue that overbroadness and vagueness of the theory may expand judicial power to an excessive degree in the realm of the environment issue, the public trust doctrine is increasingly adopted by the courts in the Unities States. Taking into consideration the limited capability of legislative and administrative procedures to address the issues as well as the significance of the natural resources to the general public, the expansion of the public trust doctrine appears to be an inevitable course that should continue in the future. Such active and affirmative role of courts can also be justified under the Arrow’s Impossibility Theorem, which proves the imperfectness of the legislation from the economic standpoint. Now that the paradigm of water distribution mode is already privatization and corporate management system today, public trust doctrine may lend itself to the ground to justify governmental intervention in specific issues to resolve. In Korea, the public trust doctrine was incorporated in some legislation. Although nationalization of rivers was repealed by the amendment to the River Act, it does not create any significant obstacle to applying the public trust doctrine to water rights. As the legal provisions for water rights are scattered in various laws, causing obscurity in the relationship among different laws and inability to apply consistent disciplines, it is desirable to create a legislation that may be titled the Fundamental Act for Water Resource. The purpose of this act should be to promote efficient distribution of water by emphasizing the nature of water rights as property right, since it rests upon all of us to achieve efficient distribution of water, the essential element to our life.