프랑스 민법상 생태손해의 배상

Ecological prejudice is a damage to the nature itself, and can be distinguished from the damages suffered by natural person or juristic person for pecuniary or non-pecuniary losses caused by environmental infringement. In 2016, the French Civil Code introduced the provisions on ecological prejudice. According to the revised French Civil Code, ecological damages such as non-negligible impairment of the elements or functions of ecosystem or the collective benefits which humans can enjoy from the environment can be recoverable under the conditions provided in the civil code. The State, local authorities, non-governmental organizations for environmental protection etc. shall have standing and interest to file actions on ecological prejudice compensation grounds. The compensation of ecological prejudice shall be effected, as a priority, in nature. And where legally or factually impossible, or where compensation measures are insufficient, the judge shall sentence the responsible party to pay damages which shall be allocated to the remediation of the environmental damage, to the claimant. Even before the amendment of the civil code, the French case already recognized the ecological prejudice suffered by local authorities or NGO. The 2016 revision confirmed such precedents and made some improvements on the problems of the previous judgments(Before, the court could not order the plaintiff to use the damages for restoring the ecological prejudice). French law recognizes the concept of collective interests which lie between individual interests and general interests, and broadly permits group litigations to protect such collective interests. French law permits various types of nonprofit organizations to claim damages in the form of civil action in the criminal proceeding(action civile), if the collective interests they seek to protect are violated. In France the provisions on ecological prejudice were able to be introduced to the civil law, under the background of french tradition that actively protects the collective interests of nonprofit organizations. However, the concept of collective interests is unfamiliar in Korean law, and the necessity of newly establishing such concept is also low. Collective interests can be considered and included in the concept of public interests, and the ecological damages can be appropriately restored within the framework of public law regulations, not the private law system of a liability for damages. Admitting pecuniary compensation for ecological harm may cause unnecessary problems. However, France's discussion of ecological prejudice can provide Korean law the following two implications. First, we also need to give the NGO for environmental protection the right to injunctions (including preventive injunctions) and the right to claim for restitution in relation to ecological damages. Second, France’s discussions on the list of ecological prejudices, and the provisions of the French Civil Code and Environmental Code for the restoration method of ecological damages and the complete recovery of ecological harms can be referred to in making, supplementing and refining our public law system related to ecological prejudice.