환경소송과 임시구제수단 -민사가처분과 행정소송법상 집행정지를 중심으로-

This article analyzes how to design and implement ① ‘preliminary injunction in Civil Execution Act’ and ② ‘suspension of execution in Administrative Litigation Act’, for the effective prevention of the environmental harm. The main conclusions are as follows. First, we should make flexible and affirmative use of preliminary remedy for the environmental harm(de lege lata). ① The court should be able to grant a preliminary injunction to prevent the applicant’s serious irreparable environmental harm, though the likelihood of success on the merits is not so high. ② The court should be able to actively grant a preliminary injunction on the condition that the applicant provides the security deposit for the future loss of the opposite party. ③ When the opponent violates the court’s preliminary order, the execution court should be able to use flexible methods of civil execution for the quick and appropriate protection of the applicant(= the victim of the environmental pollution). However, the flexible and positive attitude of the court does not always result in the judicial activism, because the court should also take the public interests of the opposite site seriously. Second, environmental loss can not be recovered sufficiently under the current tort-law. Under the current civil law, the harm to the future generations or the environment itself can not be the loss that is protected by civil liability for damages. And failing in proving the causation, plaintiffs may not be compensated for their environmental damages. Current preliminary remedies are based on the these tort-law doctrines. So, they can not be the efficient tools against the environmental damages. Moreover under the current preliminary remedy system, irreparable environmental harm can already occur before the court’s temporary order. So, it is necessary to amend or enact the law for solving these problems. Introducing the environmental public litigation(including public preliminary remedy) and, making another simplified temporary remedy system applied before the court grants a preliminary injunction, may be desirable alternatives(de lege ferenda).