환경책임과 환경보험- 환경피해구제법안(2013. 7. 30. 국회발의)을 중심으로

The need for introducing environmental responsibility legislation that is subject to strict liability has been constantly raised by the academic community. It was proposed in the form of legislation by Assembly members at the National Assembly in 1989, 1997, and 2000, but all proposals have been automatically discarded. The main reason is that the legislation was deemed premature, considering resistance from industries and businesses. Thus, requesting arbitration by the Environmental Dispute Adjustment Act or claiming damages by the Civil Act were the only means of environmental damage remedy. But the environmental dispute settlement system is limited and cannot be a substantial implement, as it is not a judical judgement but merely plays a supportive role, the damage it deals with is concentrated in a particular area (noise and vibration), and the adjustment sum is very meager. Remedy by litigation through the court does not consider characteristics of environmental damage and neither does it regard the damage as a general civil tort, so compensation requirements such as the burden of proof are strict and difficult to remedy. Additionally, the number of such environmental damage claims are meager compared to the number of disputes. Because of such limits in legal mechanism, citizens avoid remedy through litigation, and instead increasingly create political issues out of environmental disputes by relying on environmental groups and public opinion. Of course, the Environmental Policy Act and the Soil Conservation Act have environmental regulations concerning liability without fault and joint responsibility, and other individual provisions also include strict liability provisions as well. However, in practice, differing opinions on the legal nature of liability without fault in individual Acts result in uncertainty. And above all, lack of systematic devices mean that faithful execution of liability is not guaranteed. Considering these aspects, the proposal of the Environmental Damage Relief Act is welcome legislation for the implementation of swift and appropriate execution of liabilities. However, the contents of the above Act needs more revision and has a far way to go. As included in the Environmental damage Relief Act, the nature of environmental responsibility should be deemed a facility responsibility as a risk liability, and its boundaries. Preparing the basis for implementing the environmental damage insurance system as a means for executing liability for environmental damage can create an advanced paradigm of environmental management since it is not simply a means of remedy, but also allows corporations to substantialize environmentally friendly business operation, as well as equipping environmental management structures in insurance companies with effective policy.