환경과 미래세대, 그리고 효율에 관한 試論

The right to a healthy environment, as guaranteed by legislative or governmental environmental policies, possesses a fundamental character not only for the present generation but also for future ones. Environmental law is an area where public and private law intermingle, with a stronger emphasis on utilitarian principles rather than on fairness. Utilitarianism revolves around utility, which is intrinsically linked to efficiency. Inefficiency leads to a disproportionate (amplified) infringement on the rights of future generations. The Federal Constitutional Court of Germany, on April 29, 2021, ruled partially unconstitutional in its constitutional complaint against specific provisions of the Federal Climate Protection Act (Bundes-Klimaschutzgesetz; ‘KSG’). Moreover, the Montana State Court in the United States delivered a plaintiff’s victory on August 14, 2023, in Held v. Montana, stating, “The state government violated the constitutional right to live in a clean environment due to its fossil fuel policies that disregarded climate change.” Several cases concerning future generations are ongoing at the Constitutional Court in our country. Such inefficiency can also lead to issues of violating intergenerational justice. In environmental law, the principle of efficiency could function as a general principle. This principle of efficiency is compatible with the rule of law and should be considered a ground for annulment when violated. The stage for this principle of efficiency to operate in modern administrative law appears to be significant.