환경법상 사전배려원칙의 적용과 한계

초록

The contents of 'precautionary principle' are uncertain. However, the principle has a definite result on its applied areas: environmental protection. But, it is hard to deny that this principle has some limits due to the unstableness of the legal status, possibility of the collision with the cost/benefit analysis, variability and discrimination of application, possibility of conflict with the WTO system, contraction of the field of its applied areas, etc. There is certainty that the precautionary principle should not be given up when taking account of the following reasons. First, the principle could be a guideline toward environmental policies, legislation, and decision making. Secondly, due to technology used in modern society, environmental risk is at the tendency of increasing. Third, considering the significant destruction of environment, it is important to take a measure for environmental protection as soon as possible. Fourth, preventive environmental policy is a primary and foundational principle for environmental protection. Fifth, taking account of the limits of scientific knowledge due to the integrity, vulnerability and complexity of ecosystem, traditional assimilative capacity approach is difficult to deal with problem while eco-system approach is wise and correct. Sixth, it is improper to be idle toward regulation. Lastly, environmental problems have the possibility to change with accordance to the change of scientific knowledge and that there should be flexible maneuvers when that change takes place. At this moment it is hard to decide whether the precautionary principle has become binding legal custom. However, states practice and opinio juris appears to stockpile nowadays in that the principle being reflected and accepted in international policies, legislation, papers and judicial decisions etc. The precautionary principle is hard to have a specific effect unless it is clearly defined in law. Of course, it could work as a ruling principle through legal, administrative, and judicial action. However, in order for this principle to be more active, there should be some efforts for it to be clearly defined in the Framework Act on Environmental Policy and specified in other environmental laws.

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