대규모 환경훼손을 수반하는 국책사업에 대한 사법통제와 환경변호사의 도전과제

The legal problem of ‘judicial oversight of state-led projects incurring large-scale environmental degradations’ pose a difficult legal issue as follows: (1) how to approach to the matter of judicial supervision of administrative planning. (2) how, and on what criteria, to review of whether the EIA associated with the project subject to being heard before court was adequate or not, (3) how to utilize effectively the institution of interim injunction in the environmental administrative litigation. The purpose of the article is to suggest for environmental lawyers that what and how to do for encouraging court to make a decision in favour of environmental protection. The gist of the suggestions are: firstly, the court should exercise substantive check affirmatively through, for example, doctrine of judicial oversight of administrative planing-conferred discretion, as well as procedural control with a view to increasing the reasonableness of administrative decisions in the judicial review of administrative planing. To this end, environmental lawyer must champion the necessity for active substantive review. Secondly, environmental lawyer have to disclose the adverse implications of the Korean Supreme Court's established test for whether the EIA was adequate for environmental protection, and should propose an alternate judicial standard in order for court to make a decision in favour of environmental protection. Lastly, at injunction order stage, the court should deviate from just determining of whether the irreparable damages requirement was met, and give a weight to whether the probability of success in merits existed or not, thereby having the injunction function well in the environmental lawsuits.