기후변화소송과 사법심사의 범위 ⎯ 독일과 프랑스 판례의 대비를 중심으로

Since the adoption of Paris Agreement, climate change litigation has broadly increased and even become competitive. The beginnings of these climate change litigations include Urgenda decision, the German Federal Constitutional Court’s constitutional appeal in 2021, and French Administrative Court’s damages reparation in 2023. In August 2024, Korean Constitutional Court also ruled that a constitutional appeal related to climate change litigation. What these litigations have in common is that they are connected to the flow of civil movements that urge judiciary to address the inactions of the parliament and government or the incompleteness of policy formulation and implementation. The issue of climate change cannot be resolved by one single country, so international cooperations are important factors. However, the method of resolving it through judicial system has its own characteristics in each country, depending on the type and method of litigation. In particular, while climate change litigation in Germany was led by the Federal Constitutional Court, in France, judicial review by Administrative court is main, showing a definite contrast. In particular, France judged that the climate change crisis is not a matter of the rights of an individual or groups, but a national public missions, and that inactions or insufficiency of this area are the fault of the govermnent, and ruled that the legality can be controlled and liabilities for damages are also recognized. This is because the French administrative litigation can utilize the injonction and has a strong objective nature of litigation. In general, lawsuits filed against state or government are public lawsuits. In the case of climate change litigation, it is difficult to obtain complete satisfaction with only one type of lawsuit, as the plaintiff's claim may be diverse and the complex legal obligations and rights relationships between the parties involved may be entangled. Considering the plaintiff's claim, a concrete analysis of the system and method of the lawsuit is necessary. In particular, legal relationships under public law are directly related to the principle of separation of powers, which is a prerequisite for a modern democratic state. Even if judicial reviews on administration are emphasized, checks and balances between the legislative, administrative, and judicial branches should be guaranteed to prevent concentration of state power and protect the freedom and rights of the people. Beyond the symbolic use of litigations as means to feel the climate change crisis and urge action from the entire social community, it is necessary to establish advanced legal principles and improve detailed systems.