환경정책기본법상의 무과실책임 규정의 한계와 극복

초록

In order to claim for tort in accordance with Article 750 of the Civil Act, a plaintiff must prove causation, intention, and negligence, which is no simple process. The Strict Liability clause of the Framework Act on Environmental Policy is too simple to remedy environmental damage, and even should the provisions be amended, a wide range of reformation is unavoidable. Revising the law cannot solve the problem completely and has too many technical barriers. The best solution would be to enact a new law (the so called “Environmental Liability Act”) that exclusively deals with pollution-related damage and remedy. In this respect, the Act on Remedies for Environmental Pollution Damage that was proposed at the National Assembly on July 30, 2013 was encouraging. The core of the new law should be on recognizing the industry’s strict liability and presumption of causation. This is to overcome the biggest barrier to tort claim. However, we must also consider that the strict liability can also burden businesses with excessive responsibility. A good example of this would be to limit the level of responsibility. It is necessary to examine the introduction of an insurance policy, or a fund that can connect the reparation with a national-level compensation. These policies are indivisible from reparation; in other words, an anchor of the remedial system. Above all, these policies can serve as a device to compensate any situation in which reparation is not enough. In particular, national-level compensation for portions which exceed liability limits can be an advanced form of legislation unknown to any other country. The Act on Remedies for Environmental Pollution Damage does not miss this point. Including class action or any content related to compensating natural resources damage in the new law that is centered on reparation has technical barriers and is unrealistic. Nevertheless, these are issues that shall be dealt with in the near future.

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