생태환경 침해에 대한 민사법적 과제의 서론적 연구- 생태환경소송 사례와 각국의 법제도의 대응을 중심으로

초록

‘Environmental Preservation’ is a social policy that most countries are aiming at. Korea is not exceptional in pursuit with this social policy. ‘Environment’ may be divided into the sectors of ‘natural environment’ and ‘ecologic environment’. Conceptually, it is classified into ‘environmental pollution’ and ‘environmental degradation’ based on the way of infringing the ‘environment’. ‘Environmental pollution’ is a condition that harms people's health or environment. When someone provides the cause of ‘environmental pollution’, he or she is logically responsible for his or her activities'. On the other hand, ‘environmental degradation’ is a condition that seriously damages the original function of the natural environment. Where ‘environmental degradation’ proceeds, the subject who is damaged by this is very likely to be a natural object rather than a person. In this case, it is unclear how the law works so far to preserve ‘ecologic environment’ and how the law prevents illegal activities that cause such ‘environmental degradation’. This paper describes how the law copes with situations in the case of ‘environmental degradation’, which is the so-called ‘ecological damage’, by comparative analysis based on several jurisdictions, Germany, France, USA, China, Japan and Korea. This paper has reviewed how ‘environmental degradation’ can be preserved and cured by law. Legal remedies for damages suffered by natural objects in Germany, the US, China, and Japan have been issued in litigation In result, the natural objects have not been directly compensated for their damages because they are not entitled with right to litigate. There has been a lot of discussion about its necessity. On the other hand, the French court recognized the natural object as plaintiff in a case and developed the argument to legally accept the natural object as a plaintiff through the legislation. ‘Environmental degradation (‘ecological damage’)’ is not a direct damage to human or human property. It can be a question of who can initiate this problem. Due to these problems, legal issue of ‘ecological damage’ should be developed into administrative law centering on the state and local governments as well as ‘tort liability law’. Moreover, for this development, it requires more than the legal system related to ‘environmental damage’ and social recognition of ‘ecological damage’. The ‘ecological damage’ also needs to be changed by the judiciary so that it becomes the subject of ‘tort liability’. In order to deal with ‘ecological damages’ in the area of ‘​tort liability’, it is necessary to promote social interests and discuss ‘ecological damages’ in the institutional domain.

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