환경영향평가제도의 실효성 제고를 위한 해석론과 입법론 ― 환경영향평가서의 거짓ㆍ부실 작성 문제를 중심으로 ―

At the heart of the long-standing dispute concerning Environmental Impact Assessments (EIA) lies the issue of false or inadequate Environmental Impact Statements (EIS). This article aims to explore why controversies over false or inadequate EIS recur and proposes potential solutions to this recurring problem. Despite advancements in the current EIA system under the Environmental Impact Assessment Act (EIAA) compared to its introduction, the courts’ attitude has remained unchanged. The courts maintain that “Even if the EIS is somewhat inadequate, it does not necessarily render the approval unlawful unless it is equivalent to not implementing the EIA.” This raises questions whether this interpretation can be still valid under the current provisions of the EIAA, whether such an attitude encourages false or inadequate EIS controversies and whether the current provisions of the EIAA provide any support for the courts’ stance. With these considerations in mind, this article analyzes the courts' approach to false or inadequate EIS and aims to identify any problems with the existing interpretation theory while suggesting potential legislative improvements. To achieve this, the article examines the main provisions of the current EIAA regarding false or inadequate documentation of EIS, reviews existing theories and case law on the subject, and proposes interpretive alternatives to overcome the limitations of the current interpretation. Furthermore, the article suggests legislative alternatives to eliminate incentives for false or inadequate documentation of EIS and enhance the overall effectiveness of the EIA system. Given the substantial changes in the current provisions of the EIAA, the courts’ attitude towards the binding nature of the consultation notified by the Minister of Environment and the illegality of approval based on false or inadequate documentation of an EIS should differ. Moreover, the article highlights various areas that require legislative improvement, including the criteria for judging false or inadequate EIS, the authority responsible for making such judgments, administrative sanctions for false or inadequate documentation, and procedural control measures. To address these issues effectively, the article puts forward several key recommendations. Firstly, subjective factors like intention and negligence should be excluded from the criteria for determining false or inadequate documentation and should instead be considered as requirements for imposing administrative or criminal penalties. Secondly, efforts should be made to further refine and clarify the criteria for determining false or inadequate documentation, as they will form the basis for imposing sanctions or penalties and could be essential in determining the illegality of approvals. Thirdly, considering that the determination of false or inadequately documented EIS should be made not only during the consultation process for EIA but also after the approval, establishing and operating an independent standing committee separate from the EIA council should be considered. Fourthly, rejecting an EIS through a request for supplementation and adjustment should be possible, not only if it fails to comply with the formal requirements but also if it contains inadequately documented content. Finally, it is crucial to establish a legal basis for the Minister of Environment to promptly notify the head of the approval agency regarding any false or inadequate documentation found in the EIS and request the cancellation of the approval. This necessity stems from the fact that, even if a false or inadequately documented EIS is not identified at the time of review, if a consultation is conducted based on such an EIS and a project plan is subsequently approved, it poses a significant threat to the fundamental purpose and integrity of the EIA system.