환경 분쟁과 전략적 봉쇄소송

Strategic Lawsuits Against Public Participation (SLAPP) is aimed not so much to resolve legal disputes as to block people from participating in public affairs. SLAPP not only imputes the cost or burden involved in a lawsuit to the person who has expressed an idea or has taken action but also shrinks participation of any other person than the adversary of the suit. Due to this undesirable effect, twenty-seven states in the United States have enacted and implemented laws that place certain restrictions on SLAPP. SLAPP issues most frequently arise in the aspects related to environmental disputes. Since environmental policies are formed through interactions among individuals, social groups and the state, we should not allow SLAPP to discourage people’s participation in public affairs. Generally, SLAPP may be grouped in two contrasting types: The first one is lawsuit seeking compensation for tort-based damage and the second one is, with the said first one being the merit, the case of motion for provisional attachment, and cases of the second type generally pose more imminent issues that should be fully addressed. With much stress on the nature of urgency as well as necessity for sudden action, courts have been rather generous in granting request for provisional attachment without strict scrutiny. Once a provisional attachment is granted, the debtor subject to such decision is instantly affected. In light of interpretation of the laws currently in effect, the doctrine against misuse of suit may be viewed as a ground to restrict SLAPP. As provisional attachment request leads to a trial that should proceed only based on allegations and explanations unilaterally provided by the creditor, it is imperative that the creditor be governed by the good faith doctrine against the misuse of suit with greater stringency. Protection of defendant, restriction of meritless claims, and prevention of leaving a lawsuit at a unilateral discretion of one of the parties are the other reasons that the courts should not grant request for provisional attachment if it may be constructed as SLAPP. It should also be noted that Korean courts, unlike their US counterparts, have numerous SLAPP cases established well with legal and factual grounds, with high percentage of winning the suit. It is argued whether one who has filed a lawsuit that bears a high probability of winning should be granted an opportunity to keep himself/herself unaffected by theories justifying restriction of SLAPP. It is necessary to provide the filer with opportunity to be shielded from theories to restrict SLAPP, particularly if such filer shows high chance that the case will be concluded in favor of him/her.