환경법상 “(폐기물)의 발생원인이 된 행위를 한 자”의 법적 의미 - 「해양폐기물 및 해양오염퇴적물 관리법」을 중심으로 -

Most of the various pollutants originating from the land, ocean, and air eventually collect in the ocean space, which is their physical destination. Marine pollutant sediments accumulated in the seafloor space over time can act as a serious threat to the marine environment, which is a basic environmental medium that accounts for more than 70% of the entire Earth. Marine pollutant sediments need to be managed at an appropriate level to preserve the marine environment, which is the natural basis for life not only for humans but also for almost all living creatures in a closely interconnected ecosystem. On December 3, 2019, Korea enacted the 「Management of Marine Garbage and Contaminated Marine Sediment Act」 to remediate and manage marine pollution sediments and utilize dredged material. According to the Act, “material deposited in the sea, which contains any substance that exceeds the marine environmental standards under Article 13 of the Act on Conservation and Utilization of the Marine Environment, or which adversely affects human health as well as property, living environment, or natural environment” are legally conceptualized as “contaminated marine sediment.” The sea area management authority can order a person who has committed an act that causes marine pollution sediments to remediate all or part of the Contaminated Marine Sediment. While such remediation orders may be justified in general as an embodiment of the “Polluter Pays Principle” in environmental law, their application in the marine environment, particularly in the area of Contaminated Marine Sediment, may be limited. This is because Contaminated Marine Sediment that has accumulated on the seafloor through numerous paths over a long period is pointed out as theoretical and practical limitations in that it is not only difficult to find the cause of the pollution, but also difficult to hold him or her appropriately legally responsible. In this article, I aim to present legislative measures to improve the effectiveness of Contaminated Marine Sediment management administration by ① examining the insufficient elements of the current Contaminated Marine Sediment management legal system, and ② reviewing the revision history of the 「Soil Environment Conservation Act」, a similar law, and related case law to draw meaningful implications. And ③ discuss the necessity of applying “Zustandsverantwortlichkeit” and the “Principles of Effective Risk Prevention”, and ④ review an appropriate Contaminated Marine Sediment Remediation support system. Through this, I review the introduction of the concept of a person responsible for the normative (reasonable) remediation of Contaminated Marine Sediment under the current 「Management of Marine Garbage and Contaminated Marine Sediment Act」, and suggest the necessity and establishment of an effective legal system that can determine the content and scope of the responsibility.