환경판례의 이상과 현실

초록

When it comes to protecting rights, the court should serve as its last fortress. While the court over the days has shown ample examples of authoritative and admirable decisions enough to quiet down controversies, some of its judgments, though few in the number of cases, has ironically resulted in more argument. The main culprits behind these cases include the lack of logic, inaccurate expressions, ambiguous stances that provide loopholes, reversals and conflicts in and among decisions and the involvement of politics. In the backdrop, the lack of environmental knowledge and experience, the shortage of expertise, the absence of environmental philosophy, the divergence in environmental awareness and the lack of confidence has also contributed to the problem. As environmental problems intensify and its contents become more complicated, entailing issues will both widen and become more detailed. As a result, related legal theories will be to become more complex and diverse too. If the court fails to settle controversies only to incite more of them, social conflicts will continue, causing nation-wide chaos and waste of resources. People will consequently lose faith in the court and it’s authority will plunge. The problem doesn’t end here -- individuals seeking the protection of their rights will be hit most directly. At a time when environmental judicial precedents are quickly accumulating, a case study would help us look at theory and reality and their weaknesses and strengths. We can think of it as a interim review, and it would be convenient to keep in mind that judges are human too. It may be difficult to deduce implications from just a few cases, but the smallest steps to narrow the gap between theory and reality will help bring forward the ultimate and definite protection of environmental rights. It is already encouraging to see the court consider the environmental interest as a “higher value”, “something more superior to business profits and the benefits of enjoying leisure” or “a status that comes before the freedom of exercising land ownership”. The public is anticipating these perceptions to become a reality and not stay as mere theories. It is time for the court to pluck up courage and reform itself.

키워드