오염된 토지에 관한 민사적 책임

When an innocent purchaser of contaminated real property later discovers about the contamination and is forced to incur cleanup costs, difficult legal issues of liability arise. The Supreme Court of Korea addressed some of these issues in an en banc decision (En banc Decision 2009Da66549, May 19, 2016) in 2016. Although this decision settled many of the important issues of civil liability involving the transfer of contaminated property, unanswered questions still remain. The goal of this article is to provide a comprehensive doctrinal analysis of civil liability claims that can be brought by the innocent purchaser of contaminated property. The innocent purchaser can hold its immediate predecessor of ownership (i.e. the party that sold the property to her) liable for damages under contract law. There are two different causes of action that the innocent purchaser can rely on: breach of warranty and breach of contract. The innocent purchaser can also bring a general tort claim under the Civil Act against the original landowner/polluter. This is the core of the holding of the 2016 Supreme Court en banc decision. The four dissenting Justices argued that the original polluter’s action of contaminating the property was not the proximate cause of the purchaser’s injury. However, when analyzed within the previously established standards of proximate causation including the standard of foreseeability, the actions of the polluter passes the foreseeability test and can be established as the proximate cause of the remediation costs. In addition, the innocent purchaser can bring damages claims against the original polluter under Article 10-3 of the Soil Environment Conservation Act (SECA). The dissenting opinion of the 2016 en banc decision argued that Article 10-3 of SECA only provided remedy for damages suffered to ‘other property’, and any injury to the contaminated land itself could not be recovered. But Article 10-3 should be construed broadly to permit recovery of damages to the contaminated property itself. This broad interpretation is also in line with the stated purpose of SECA and can complement the overall regulatory scheme. The innocent purchaser can also bring a lawsuit against the original polluter under Articles 213 and 214 of the Civil Act and ask the court to order the polluter to clean up the land. And finally, the innocent purchaser can rely on doctrines of unjust enrichment and agency without specific authorization, both of which have statutory support in the Civil Act. Unjust enrichment might well prove to be the most advantageous legal tool for the innocent purchaser, because unjust enrichment claims do not require the plaintiff to prove the polluter’s negligence or intent, recovery is not limited by comparative negligence, and the statute of limitations is more favorable than tort claims.