온실가스 배출로 인한 환경오염과 관련한 기본권보호의무

Insufficient climate protection under the former German Federal Climate Protection Act violated the state’s duty to protect fundamental rights pursuant to Article 2 paragraph 2 sentence 1 and Article 14 paragraph 1 of the German Fundamental Law, and filed a constitutional complaint against the legislative action. The former Federal Climate Protection Act in Germany aims to reduce greenhouse gas emissions by 55% by 2030, limit global temperature rise to 1.5°C, and achieve climate neutrality by 2050. The Federal Constitutional Court of Germany declared that Article 3 paragraph 1 sentence 2 and Article 4 paragraph 1 sentence 3 of the former German Federal Climate Protection Act were unconstitutional. From 2031, the statutory provisions on improving emissions reduction targets must meet the constitutional request. It held that the legislature was obliged to amend the provisions for the improvement of the post-2031 emission reduction target no later than 31 December 2022, as appropriate. The German Federal Constitutional Court used the obviousness control criterion to judge only whether the state had taken measures to protect fundamental rights and whether the protective measures necessary for the protection of fundamental rights were completely inadequate or insufficient. In the judgments of the German Federal Constitutional Court, the criterion of obviousness control is commonly used in the application of the principle of prohibition of minimum protection. In environmental pollution cases, it is reasonable to use the validity (persuasiveness) control criterion, which examines whether the state takes appropriate and effective minimum protection measures based on closely investigated facts and valid evaluations in consideration of conflicting legal interests. In the case of the German Federal Climate Protection Act, the German Federal Constitutional Court developed the legal concept of ‘prior effect similar to the violation of fundamental rights’. The concept of ‘prior effect similar to the violation of fundamental rights’ makes it possible for the state to take protective measures by requiring a high degree of probability in the case where there is no fundamental rights violation at present, but there is a high probability of future violation to justify the violation of fundamental rights. However, the concept of ‘prior effect similar to the violation of fundamental rights’ presupposes an act of intrusion on the fundamental rights of the state, but it is difficult to apply it as the logic of the right to defend rights because it is the case of inflicting harm on a person due to carbon dioxide (CO2) emission. Rather, the state’s duty to protect fundamental rights should be applied. In Korea, there was a case in which a constitutional complaint was filed claiming that the provisions of the former Animal Protection Act, which stipulates the grounds for regional registration restrictions on animal burial grounds, violated the petitioners’ environmental rights by incompletely or insufficiently stipulating the grounds for the restrictions. The Constitutional Court of Korea used the obviousness control criterion in this case. In the case of restriction of the right to life or personal freedom due to environmental pollution, rather than applying the obviousness control standard, it is a matter of harm to important fundamental rights, there is a possibility of serious and irreversible damage due to environmental pollution, and it is necessary to apply the validity control criterion to properly and efficiently fulfill the duty to protect fundamental rights.