오염토지의 매도와 민사책임- 대법원 2016. 5. 19. 선고 2009다66549전원합의체 판결 -

The subject matter of this case is the question of who should be the final bearer of purifying costs among polluter, first buyer, and final buyer who pay for the cleanup. The majority opinion of the Supreme Court said that if the polluted soil had been circulated without being purified, the polluter had to be held liable to the final buyer for the cost of cleaning. On the other hand, a minority opinion suggests that the final buyer can claim damages only from the first buyer because the purchase of the contaminated land at the normal land price is the cause of the damage. Both majority opinion and minority opinion are logical persuasive. So I first examined what conclusions are appropriate for this case and then sought to justify these results. Some view suggest that the final buyer paid the purifying cost voluntarily in order to enjoy the development profit, so this is not a damages that can be repaid. However, soil cleaning was not an option, and the cleaning cost that the final buyer did not calculate in the course of the sale is a loss. The relevant laws and decisions of the Constitutional Court confirm the perception that polluters have the greatest responsibility for cleanup costs. And this valuation should be taken into consideration in imposing civil liability. The Polluter-Pays Principle, which is a universal response to environmental pollution, confirms this point. The minority opinion shows that the first buyer bought it in consideration of the pollution, enjoyed the development profit through reselling the land, so that he had to have a primary responsibility. However, in view of the general perception of soil contamination at the time of the first sale, it can not be said that the purifying cost was reflected in the purchase price. Therefore, the first buyer is considered to be less responsible than the polluters. However, some of the proceeds from the resale of the contaminated land would have to be injected into the pollution cleanup. The legal basis for such cost allocation would be tort and unjust enrichment. I think the best logic about tort is the majority opinion of the Supreme Court. The majority opinion acknowledged the unlawfulness on the basis of pollution and the circulation of the non-purified land. This is reasonable considering the specificity of soil pollution. However, there is no mention of cases in which the purchase price is sufficiently reduced in the first sale. In this case, it can be seen that the unlawfulness of not fulfilling the purification obligation was removed by reducing the purification cost. Regarding the unjust enrichment, restitution is easily accepted because both the final buyer's losses, the benefits of the polluters and their relevance are all recognized. If water pollution or air pollution causes externality by spatial diffusion, soil pollution causes externality through temporal persistence. Therefore, the theory of torts reflecting the temporal persistence of soil pollution is required, and the majority opinion of the object judgment reflects these demands. Of course, based on unjust enrichment, the same result may be achieved by a simpler and clearer theory, but it is not necessary to deny the establishment of torts.