사인에 의한 소음공해를 방지할 국가의 의무 - 유럽인권재판소의 접근과 헌법재판소의 접근 비교 -

When an individual is responsible for noise pollution, it primarily falls under civil law matters. However, if the resulting harm from noise pollution falls within the realm of public rights protection, seeking redress through litigation against the state becomes possible. In the case of the European Court of Human Rights, relief claims can be made by asserting a violation of the right to respect for home, while in the case of Korean Constitutional Court, relief claims can be made by asserting a violation of the environmental right. The central issue in both instances revolves around whether the state's duty to prevent noise pollution caused by individuals is insufficient. The Moreno judgment illustrates a typical argumentative framework in the European Court of Human Rights, determining if inadequate enforcement of noise pollution prevention infringes upon the right to respect for home. In this case, In this case, the fair balance test becomes pivotal, broadly similar to the standard applied when the state directly restricts Convention rights. In the case of Korean Constitutional Court, the determination of whether there is a violation of environmental rights is based on the principle of prohibiting underprotection. This test is considered to be distinct from the proportinality test. However, understanding the core of the proportionality test as balancing interests suggests a broad similarity between the two standards, akin to the approach of the European Court of Human Rights. Both the Moreno judgment and the Korean Constitutional Court's decision on noise pollution during election campaigns involve evaluating the concrete extent of harm caused by noise before applying their respective tests. Despite changing the precedent, the Korena Constitutional Court suggested a relaxation of the intenstity of review, which may not be desirable from the perspective of the persuasiveness of the argument.