환경위험책임에 대한 공법적 고찰

The environmental liabilities system puts its main purpose on achieving public interest like protection of an environmental infringement victim's property rights and proactive prevention of environmental pollution. The environmental liabilities, as an independent field of law encompassing the public & private law, become a vital element in achieving the national goal for guaranteeing the people's basic human rights based on the Constitution including environmental rights, and further continuous economic growth and environmental preservation. However, the principle of liability with environmental risk has been on the rise as a powerful alternative on the basis of the introspection that the traditional principle of liability with fault is difficult to carry out such a function due to the complicated causal relationship between environmental risk and environmental damage. The liability for environmental risk, distinct from the general risk liability discussed in the existing public law or private law, sets forth ⅰ) the existence of environmental risk, ⅱ) dominance of special risk sources ⅲ) risk realization caused by an accident, etc. as core conceptual elements, and direct infringement by a full-scale accident, indirect infringement by regular operation & obstacles to operation, infringement by dangerous facilities, etc. belong to its main type. Such an environmental risk liability can be justified by the principle of social constitutional state based on the Constitution and environmental rights, but in case liabilities are excessively enlarged, it leaves much room for encroaching on the property rights of a dominator of environmental hazard sources, so a certain restriction is demanded. Whether to put a restriction on it and the extent of a restriction can be judged through the principle of proportion and principle of trust protection based on the Constitution; for example, in case of normal operation conforming to public-law-based standards, premised should be the rules of authentication of causal relationship that makes it possible to harmonize interest between an inflictor and a victim, together with the cause of immunity from liability while the fund and insurance system should be established that can stand security for damages in advance. In case public-law-based standards might be interpreted as possibly having a direct influence on legal relations, or alleviating and exempting the liability of compensation, there is a need for a partial restriction on the application of environmental risk liability. From the aspect of the legislative policy, at present, our country is partially introducing environmental risk liability through the environmental law, such as framework act on environmental policy, but actually, many problems are being indicated. Hereupon, as an alternative for solving environmental problems, ultimately, enactment of the environmental liability law would be the most effective solution to settlement of such problems in order for environmental risk liability to smoothly apply within the constitutional limit.