토양오염과 불법행위책임 - 미국 보통법을 중심으로

A vendor who sells contaminated land is liable to a subsequent purchaser for breach of contract and warranty. However, in cases where the said land has been subsequently transferred to another person, the current landowner no longer can hold the vendor who was responsible for the contamination liable for breach of contract and warranty due to lack of a contractual relationship. That being said, it has been much debated whether a current owner of contaminated land can hold the previous owner who was the one that caused the land to be contaminated liable for tort liability. In the past, the Supreme Court of Korea had denied tort liability of the previous owner who contaminated one's own land on the grounds that contaminating previous owner's own land did not by itself incur any damages to the current owner. However, in 2016, the Supreme Court of Korea overturned its previous decision and held that the previous owner who contaminated its own land and subsequently sold the land without cleaning up the contaminated land was deemed liable to the current owner for torts. Such legal disputes over contaminated land are not a problem unique to Korea. In the U.S., there are ongoing debates on whether a soil polluter can be held liable for torts under the common law by applying trespass, nuisance, and strict liability for abnormally dangerous activities. In particular, both the Korean and U.S. courts appear to be split based on similar reasoning on whether “the previous landowner who caused soil contamination or buried waste on one's own land can be held liable for torts,” which was a contentious issue in the recent Supreme Court of Korea's en banc decision (see 2009Da66549 decided May 19, 2016). One who are opposed to imposing tort liability (the dissenting opinion of the Supreme Court of Korea) questioned whether the purchaser's interests should be protected on the grounds that the purchaser should have but failed to find out how the land was used before concluding the sales contract and subsequently reflect any likelihood of environmental damage when negotiating the purchase price with the seller. However, given that environmental damage from soil, air, and water pollution lasts a long time and risks thereof are much more apparent than other general tort acts, such acts leading to environmental pollution or damage should be prevented. In addition, it is a generally accepted legal principle that any person who causes any risk to society should prevent such risk from causing damage to others and compensate those who were damaged therefrom. In that sense, the Korean Supreme Court's en banc decision sheds light on how our society should move forward.