騷音, 振動 및 日照保護規制法制

全昌祚 한국환경법학회 1982 環境法 硏究 Vol.4 No.-

日照權 侵害의 私法的 救濟의 法理에 관한 硏究

全昌祚 동아대학교 환경문제연구소 1978 硏究報告 Vol.2 No.1

海洋環境汚梁防止에 관한 規制의 國際法的 發展에 관한 硏究

全昌祚 부산외국어대학교 사회과학연구소 1987 社會科學論叢 Vol.3 No.-

초록없음

公害의 私法的救濟의 法理에 관한 硏究

全昌祚 東亞大學校 1974 東亞論叢 Vol.11 No.2

騷音·振動의 法的規制에 관한 硏究

全昌祚 동아대학교 환경문제연구소 1982 硏究報告 Vol.6 No.1

海洋汚染防止에 관한 法的規制의 國際法的 發展에 대한 考察

全昌祚 동아대학교 환경문제연구소 1979 硏究報告 Vol.3 No.1

公害被害者에 대한 法律的救濟에 관한 硏究 : 私法的救濟를 中心으로 mainly focussed on the civil judicial relief

全昌祖 東亞大學校 1972 東亞論叢 Vol.9 No.-

Nowadays the problem of the evironmental pollution has become one of the serious social problems even in this country, an under-industrialized country. The evironmental disruption has been so aggravated these days that we can no longer overlook it as a by-product or necessary evil accompanied in the course of the industrial development. The present situation of the pollution stands in need of immidiate and intensive countermeasure. But the effective measure to meet the evironmental crisis can be expectected after all through the cooperation of interdsciplinary approaches, powerful exercise of the administrative power which is based on the principle of priority on human being and enhancement of the consciousness about the environmental damage and environmental right as well. Of the various kinds of judicial relief for the environmental damge, it is more desirable to strengten the administrative activity to prevent the pollution and damage beforehand rather than to resort to the civil judiciary remedy ex post fact. However as a legal step for the control of the pollution we have only one public law, The pollution Control Law, which was revised on 22th, Jan. 1971 and has been in force with its associate ordinance. It is doubtful that we can expect effective pollution control under such a inperfect and conservative legal system concerning the environmental pollution compared with that of advanced nations such as U.S.A. and Iapan which has many special laws to meet the various factors of pollution. The judiciary relief for the damage of the evironmental pollution can be also realized by the civil judicial procedure through the theory of the compensation for damage in the field of Tort. The modern civil law, however, could not foresee in the first stage of its formtion such a up-to-date type of trespass as pollution which gives wide and grave fatal damage to people in large; and it was not constructed so as to deal adequately and impartially with damage caused by pollution. Accordingly we can no longer hope to relieve adequately sufferers of pollution applying the conventional civil law theories which are based theoretically on individualism and liberalism. Now it became urgent business to establish new and revised judicial theories suitable to specific characters of pollution to deal with pollution problems adequately and impartially through the civil precedure. We think it is the general rule of growth of law that the law and its theory once formed on the basis of the given social condition ought to be changed and revised so as to be cnnformed to new social condition as it changes. So we must realize that the judicial theory of controlling pollution should be pursued on the ground of the fundamental idea of law nd concrete equity to meet effectively to the newly emerged phenomena such as pollution without adherence to the conventional judicial theories of the modern civil law;and that is not only desirable but possible. As the order of labor law was built up in the course of revision of capitalistic contradictions by the sagacity of capitalism, it is necessary and also possible that the new order of theories of the modern civil law individualistic and liberalistic so as to conformed to the specific characters of environmental pollution. However it comes into question whether we should build up specific and original principles of the order of environmental law as a specific field of law aloof from the modern civil law, or revise old principles of the civil law gradually standing on an extention line of old judicial order. To say the conclusion briefly as to this problem, the new judicial theory of pollution, if it were formed in the utterly isolated condition from the old principles of the civil law, will contain a leap and friction of theory and may lose effectiveness of law for want of persuasion. Therefore it appears desirable to form the new theory through the accumulation and fixedness of theories held by judicial precedents and accademic theory revising inadaptability of old theories in order to establish persuasive and effective principles of environmental law alongside of the maintenance of the judicial stability. The compensation of damage in the existing civil law is dealt on the basis of the principle of liability of negligence, and no exception is permitted even in case of pollution problem. These days there emerge many scholars who claim from the original standpoint to apply the theory of strict liability as main rule to meet the environmental litigation. Though we agree with such a tendency fundamentally in a view of requirement of equitable solution of pollution probems, we must pay prudent consideration to the legislative introduction of the rule of strict liability into the existing civil law which is still theoretically based on the rule of liability of negligence. We might come upon difficult problems in the course of legislative solution of the rule whether we may stipulate the rule in the special law considering the special character of the pollution, or introduce the rule as an exceptional one into the civil law. Of course we can admit practically the rule of absolute liability by means of legal interpretation applying the new theory of limitation of endurance which is a new theory of the unitary judgment about the requisites of compensation for damage, intention negligence and illegality, even in the field of existing civil law. And such a tendency which is found in the latest judicial cases and also held by scholars is noticiable one to revise the old judicial cases and an interlocutory role toward the legislative solution of the rule of strict liability. However we can not expect effective and impartial solution of the environmental problems because of the fact that there is limitation in the way of solution by the conventional theory of civil law. Therfore it is urgent request to establish the rule of strict liability suitable to pollution problems in the field of existing civil law. The theory of probability in the sphere of causation to lighten the burden of proof has become almost an established theory, but the study of utilizing the fruit of epidemiology must be accelerated furthermore. It is liikely to be the legal tendency of today that the essence protected interest against pollution has shifted from ownership and usufruct to personal right and furthermere to one what is called 'the right of living benefit which implys not only real right but all kinds of living interest. The theory of personality of Forkel one of Genman scholars and the opinion of Meier-Hayoz maintaining that real right exist and serve after all for the human life show also us abovementioned tendency. It seems that the environmental right which was proclaimed at Tokyo symposium and also declared at Stockholm conference will be the essential concept of the order of environmental law, and various legal theory will be constructed based on this concept of right. Today the aspect of plolution has been aggravated, so the control of pollution became urgent and impending task of all races of the world. The pollution problem should be basically grounded on the idea of priority on human being, though the growch of G.N.P and industrial development be slowed down temporally. At the sametime, revision and formation of legal theory in the field of civil law to meet the legal solution of pollution problem must also be rooted on the principle of priority on human being.

爭議權槪念의 展開와 勞動者의 民事免責

全昌祚 東亞大學校 1966 東亞論叢 Vol.3 No.-

1) Nowadays, the right of labor disputes is generally guaranteed as the fundamental right of working class, with all the variety of ways of legislation, by the governments of most democratic countries. At the same time workers are no longer responsible civilly as well as criminally for the results caused by the militant acts of workers provided that their acts are legal ones, as the militant activities of the worker against the employer is now considered as the exercise of the right of labor disputes. So the legal guarantee of the right of laborers' conflicts means the civil immunity; and the process of development and establishment of the right is nothing but the history of formation and security of the civil immunity. Therefore I think that we must first trace the history of development of the concept about the right of labor dispute in order to fully understand the civil immunity. The process of development of the right of labor conflicts is generally devided into three historical gradation as follows; 1) denial of the right, 2) liberation of the right, and 3) positive acknowledgement of the right. In chapter 2 of this thesis I have tried to race the course of changes in the concept of the right of labor conflicts through above-mentioned three gradation of development. 2) In chapter 3 of this thesis, I have studied how the civil immunity was formed and established in Germany, France and England with the improvement of the concept about the right of labor conflicts. We can find that the histories of formation of the civil immunity in those countries are long painful and bloody ones for workers, when we notice that the civil immunity is nothing but the fruit or trophy secured by hard and desperate struggle by workers for the establishment of the right of labor conflicts. Thus the civil immunity came to be guaranteed as a legal system in most modern countries through double elements or moments, that is, the right-conscious labor movement and what is called the sagacity of capitalism. Consequently the workers came to be exempted from the responsibility of compensation for damage aroused by the violating of labor contract or tore that brought forth during the laborer's militant activities, so long as the activities are regarded as legal ones. In article 8 of our Labor Dispute Mediation Law was also provided the civil immunity of laborers as to the legal militant activities against the employer. 3) Chapter 4 is chiefly devoted to the study of the essential character of the right of labor conflicts because such a study is closely related to the formation of legal theory about the civil immunity. 4) Though the civil immunity is legally guaranteed in principle, all the militant activities are not lawful and not exempted from civil' responsibility. These activities may be considered as unlawful ones unless they have legality. The legality of the militant acts is the requisite for the civil immunity. Then what is the substance of legality? What is the general standard with which to evaluate the legality of the militant activities? This problem is the theme of chapter 5 of this thesis. Still we can not find a general Opinion about it, but the concept "the sound social sense" is now generally accepted as the general standard of legal evaluation by some scholars. But some other scholars are pretty skeptical of the standard and give up forming the proper substance of it on account of the fact that the concept "the sound social sense" is too abstract and unsubstantial to be applied to the evaluation of legality of concrete militant activities. The concept the sound social sense, is newly shaped one in the realm of labor law on the basis of amendment of civil law's principles, and consequently it seems to be inevitable that the concept is somewhat abstract and unsubstantial. But I think, as stated in chapter 5 of this thesis, that we can shape the substantial contents of the concept"the sound social sense"with the secondary principles which support the concept, and these secondary principles can be found through the study of the essential character of the right of labor conflicts, and the study of judgement about the individual dispute case. Besides, in chapter 5, I have also touched on the legality about the typical type of militant act from the view points of objective and measure. But to my regret I can net but admire that {here still remain many important problems which I did not touch on in this thesis in connection with the legality of the militant activities of workers.

우리나라 公害訴訟判例에 나타난 公害法理論의 動向에 관한 硏究 : 因果關係論을 中心으로 Focussing on the Theory of Causal Relation

全昌祚 동아대학교 환경문제연구소 1980 硏究報告 Vol.4 No.1

消費者保護의 私法的 法理에 관한 硏究 : 製造物責任을 中心으로

전창조 세계평화교수협의회 1977 아카데미論叢 Vol.5 No.1