환경조례의 입법재량에 관한 사법적 통제 — 축사건축에 대한 이격거리규제조례판결(대법원 2019. 1. 31. 선고 2018두43996 판결)을 중심으로 —

In 1995, when local autonomy has expanded with local government heads by direct election of residents, most of the environmental affairs were entrusted to local government heads as subordinate to the national environmental policies. However, in Korea today, local environmental ordinances are established in various areas such as waste, water and sewage, natural landscape conservation, air pollution, livestock excrement, and environmental impact assessment. At present, laws and regulations concerning the handling of environmental conflicts among residents in the area are incomplete. The scope of delegation is wide and the limits of delegation are not clear because of the use of uncertain concepts. Therefore, the discretion of local ordinances is quite wide. Local governments have suffered considerable trials and errors in exercising so wide legislative discretion. In the target case(Supreme Court 2019.01.31., 2018 du 43996), the contents of ordinances related to the regulation of separation distances have been changed several times. There have been two related lower courts' rulings in related cases, and the appeals have been annulled by the Supreme Court. Until now, the separation distances between buildings and buildings has been hardly respected as a standard for protecting property rights of neighboring residents. The strength of rights protection was very weak when it was dealt with as an interpretation issue of the civil law or the building law in the civil court practice. Even if a neighbor filed an administrative suit against a building permit that violated the separation distances, the court dismissed the suit citing that there was no profit from it, or did not recognize the right to request a suspension of construction order from the neighbors, . However, in the ruling under review(Supreme Court 2019.01.31., 2018 du 43996), the Supreme Court judged that it was different from the separation regulations as a means of limiting property rights. In relation to the regulation of the separation distance between livestock and neighboring residents' housing, the Supreme Court, unlike the original High Court, emphasized the protection of health rights and environment rights, and applied the proportionality flexibly by comparing and evaluating interests of the operators and residents to enhance the protection strength of the residents' health rights and environment rights. The Supreme Court's judgment is deemed appropriate because the local government's successful execution of the ‘environmental specificity’ in environmental ordinances has important meaning for the identification and enhancement of autonomy. In the future, general principles of administrative law, such as proportionality in judicial control of environmental ordinances that require adjustment of the profits between operators and residents, will be used more frequently because of his resilience and generality. In this process, the court should not only look at whether it has made legal interests of the relevant stakeholders fair but appropriate, but also at what extent the procedural justification was respected in the process of clarifying the environmental protection standards.