토양오염의 민법상 불법행위 성립요건에 관한 비판적 고찰- 대법원 2016. 5. 19. 선고 2009다66549 전원합의체 판결을 중심으로 -

Today’s environmental problem is perceived as not the one which can be solved by efforts on the part of a certain individual, organization, or a respective country, but as a task that cannot but be solved by the whole human community. However, unless one infringes on another person’s rights directly, the legal principle under the civil law, which has a hardship in acknowledging the illegality of an act, rendered it somewhat difficult to handle the environmental pollution issue simple. With the perception of such a vulnerable part, the researches based on legislation and case law have continued, such as inquiry into a plan to make causal relationship verification in the environmental pollution suit easier. Notably, the Supreme Court has recently decided to acknowledge the tort liability under the civil law against one who aroused soil pollution on his own land and distributed it by changing its previous position through Supreme Court en banc Decision 2009Da66549 Decided May 19, 2016(hereinafter referred as ‘the Judgment’). As regards to the Judgment like this, in case of soil contamination, such decision results in acknowledgment of the tort liability against the soil pollution source contributor under the civil law limitlessly and permanently, evoking criticism that the ruling has leeway to run counter to the nature of the tort liability in case the legal principle of the civil law is applied to the general tort liability as it is. However, the Judgment has significance in that it realized the purpose of environment preservation, even in the legal relations of the civil law according to the ideal of public welfare judicially, but it also specifically presented a special structure where the tort is committed only after potential losses become real as the legal validity affects even one who is not the party to the contract through the permanence of a harmful act. In other words, the above Judgment not only acknowledges the illegality of the act of distributing the land by arousing contamination on the land of his own but also confirmed their determination that application of the principle of the contract law to the tort could be restricted, and that the tort doesn’t occur only through trade connections because a land contamination contributor, regardless of one’s own land, or the land of other person’s own as of now, also comes to accept liability for the present land owner, other than the party to the contract, who acquired it after the land passed through many hands. Nevertheless, the conclusion by a majority opinion of the Judgment, which acknowledged the tort liability against one who caused contamination on his own land and distributed the contaminated land as established may be regarded as valid, but they should have made it clear that the acknowledgment basis of illegality shall consist in ‘Natur der Sache’ consequent on Article 35, Clause 1 of the Constitution and related regulations of the Environmental Law, through which they should have looked into the aspect of 'Tat' on the land contamination contributor’s landfill and distribution act. Besides, in case of acknowledgment of the permanence of such a harmful act, there can potentially be actual differentials in damage calculation consequent on fluctuations of land prices; therefore, it’s necessary to arrange the distribution plan at a level of practice on the grounds that the basis of illegal acts consists in the value of fair and proper distribution of losses.