土壤汚染의 私法上 規律에 관한 硏究

다국어 초록 (Multilingual Abstract)

Along with air and water, soil is an absolute requirement for all forms of life on Earth including human beings, and it performs vital environmental functions. However, mankind’s industrial activities, which today’s high standard of living and economic development entail, have led to an increase in the use of petrochemical and biochemical substances, resulting in alarming levels of soil contamination, with continued production of harmful pollutants. Unlike other types of pollution, soil contamination is not immediately visible but accumulates latently over time, and its effects are delayed but long-lasting as they affect human beings indirectly through organisms living on the soil and aquifer pollution. Moreover, soil contamination is difficult to clean up and requires much more time and money than do air and water pollution, due to soil’s lack of fluidity.
In Korea, soil contamination has become extensive, with sources of pollution ranging from abandoned mines developed in the early 20th century and landfills to petrochemical facilities and other forms of industrial pollution that have followed the rapid development of the 1960s. In the 1990s, the protection of soil and the removal of soil contamination became significant social issues, leading to the Soil Environment Conservation Act, on January 5th, 1995, and serious discussion on policies to counter soil contamination. But up to this point, the responses of policy makers have been inadequate considering the gravity of the situation of soil contamination, lacking even basic statistical data on the contamination levels of soil in industrial complexes or in specific areas. Moreover, it is difficult for plaintiffs to receive compensations in the event that any damage actually arises. In contrast, in other countries, soil contamination has long been a social and economic issue of concern, due to various legal cases involving soil contamination, and policies to regulate soil contamination, as well as liability laws for the legal resolution of relevant cases, have been enacted.
This study discusses the considerations that are particular to liability on soil contamination, which departs from the normal discourse on civil liability, and seeks to suggest a rational solution for resolving soil contamination cases. This will be done by surveying the liability laws that pertain to damages from environmental pollution in the framework of the civil law and environmental regulations such as the Soil Environment Conservation Act, and by performing a comparison of foreign legislations on liability for soil contamination to suggest rational steps for prevention of and compensation for soil contamination in Korea and to provide some insights for future legislative purposes.
The establishment of a regulatory system for the prevention of pollution and production of chemicals harmful to the soil is a top priority, as is the discussion and deliberation on the legal compensation for liabilities for environmental pollution, including soil contamination. As the standard tort system in civil law mainly deals with acts of individuals unintentionally committed, there are difficulties in applying it to environmental damages which involve many abstract, inevitable, large-scale, and variable elements, such as immission and nuisance. Therefore, as it is important to prevent pollution in advance and preserve the soil’s natural state, regulations to control soil contamination in advance and deliberation on ways to compensate for damages incurred are also essential. First, some fundamental reflections on soil contamination are offered, analyzing the sources of pollution and precedent cases involving pollution. Then, domestic and foreign liability laws for soil contamination will be compared in order to assess analytically the formation of legal principles as well as the problems in this process, examining normal liability and compensation for environmental pollution and, in particular, soil contamination.
First, the arbitration system for environmental disputes is limited as a compensatory measure for damages from soil contamination, as it has limits that include the nature of arbitration system, the active parties of resolution, and the criteria for judgment. There have been attempts to reach resolution based on civil law theory, but there are problems with this approach, as Korean civil law was not formed with environmental pollution in mind. Some have invoked adjacent property relation in realty laws, but this was mainly to pursue strict liability. As Article 31 of Basic Environmental Policy Act and 3 of Article 10 of Soil Environment Conservation Act both provide for strict liability regarding this matter, there is a limit to the application of civil tort liability, the conditions of which is based on the illegality of actions. Consequently, the jurisdiction of liability for environmental pollution falls under that of liability for hazards.
Cases of miscellaneous environmental damages not involving pollutants are governed by the tort regulations under Article 750 of the Civil Code. As the civil law also applies when determining compensation for damages caused by soil contamination, there is little difference between cases of soil contamination and those cases where Article 750 of the Civil Code normally applicable, except that the Basic Environmental Policy Act provides for strict liability. Thus, it becomes possible to demand compensation for causality of pollution, under the civil law and the relevant special legislations, the Basic Environmental Policy Act and the Soil Protection Act. For the purposes of claims for restraint, the intentions and the negligence of the defendant are not required as independent conditions, but when claims for damages are based theoretically on normal tort liability, strict liability applies with regard to the criminality of intention or of negligence. The concepts of collateral liability and liability for default on obligations are also becoming increasingly cited in academic circles and in court cases in relation to soil contamination.
Then, foreign regulations and cases on soil contamination are compared and analyzed to find points of possible application and response in Korean law. For example, the Superfund Program under CERCLA in the United States, the German measures for the removal of Altlasten through the legislation of the Federal Soil Protection Act(BBodSchG), and other legislative steps may be compared to provide some insights. CERCLA in particular has faced criticism regarding the distribution of the clean-up costs and the handling of Brownfield; nevertheless, CERCLA’s processes of evaluating contamination risks, categorizing contaminated areas, and selecting appropriate procedures for pollution removal serve as points of reference for measures to evaluate and clean up polluted areas in Korea. Moreover, CERCLA deserves consideration particularly for its function as a comprehensive liability program, with the institution of funds to clean up areas affected by the pollution of not only soil but also of air and water.
The Korean legal system does have various special legislations that recognize strict liability of the polluter in cases of environmental damages including soil contamination, but these measures remain inadequate on many levels, not least for the lack of financial resources. Hence, there is a need to consider the enactment of measures that enforce the obligation of proprietors of potentially hazardous facilities to pay compensation in the event of contamination, as well as those that place the burden of proof on such proprietors, in order to facilitate response to acts of soil contamination. Moreover, the categorization of the extent of liability into unlimited liability and limited liability needs to be discussed, and in the latter case the maximum must also be set. As for the processes for the investigation of causality, the burden of proof should be shifted, with procedures such as the estimation of risks also considered. In addition, administrative liability, through penalties to prevent pollution in advance, and financial liability, by way of compensation liability insurance, should be pursued in parallel as devices to guarantee the efficacy of environmental liability regulations.
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Key Words ; soil contamination, protection of soil, environmental pollution, environmental liability, civil tort liability, Superfund Program, Altlasten, Brownfield, strict liability, clean up polluted areas, environmental liability regulations, Basic Environmental Policy Act, Soil Environment Conservation Act.

목차 (Table of Contents)

• 1. 目 次
• 제1장 序論 1
• 제1절 硏究의 目的 1
• 제2절 硏究의 範圍 및 方法 5
• Ⅰ. 연구의 범위 5
• Ⅱ. 연구의 방법 7
• 제2장 土壤汚染에 대한 基本的 考察 8
• 제1절 土壤汚染의 意義 8
• Ⅰ. 土壤의 槪念과 機能 8
• 1. 環境媒體로서의 토양 8
• 2. 생태적 기능과 비생태적 기능 9
• Ⅱ. 土壤汚染과 汚染의 特性 11
• 1. 토양오염의 정의 11
• 2. 오염의 일반적 특성 12
• 제2절 土壤汚染 原因과 實態 16
• Ⅰ. 土壤汚染의 原因 16
• 1. 槪況 16
• 2. 오염원인의 검토 18
• Ⅱ. 土壤汚染 實態와 被害事例 19
• 1. 폐기물의 매립지 19
• 2. 석유류, 유독물의 제조․저장시설 24
• 3. 산업단지지역 28
• 4. 휴․폐광지역 33
• 5. 국방관련 시설부지 36
• 제3절 土壤汚染 基準과 測定 41
• Ⅰ. 土壤汚染憂慮基準 等 41
• Ⅱ. 土壤測定網 및 土壤汚染度 現況 43
• 제3장 土壤環境汚染의 責任法制 槪觀 46
• 제1절 序言 46
• 제2절 우리나라의 土壤汚染 관련 法制 47
• Ⅰ. 環境政策基本法 49
• 1. 성격과 기본이념 49
• 2. 基本原則의 法 規定化 50
• Ⅱ. 土壤環境保全法 58
• 1. 制定經緯 및 構成 58
• 2. 토양오염 예방에 관한 규정 59
• 3. 오염원인자 책임부담의 원칙 61
• 4. 無過失의 被害賠償과 淨化責任 62
• 5. 토양환경평가 63
• Ⅲ. 土壤環境保護法制의 問題點 64
• 1. 법 규정과 체계상의 문제 64
• 2. 土壤汚染責任과 淨化財源의 문제 66
• 제3절 外國의 土壤汚染責任에 관한 法制 70
• Ⅰ. 미국 70
• 1. Superfund 관련법과 責任法 체계 71
• 2. RCRA 관련법 85
• 3. 기름오염법(OPA) 87
• Ⅱ. 유럽연합(EU) 87
• 1. 유럽환경손해책임지침의 성립 87
• 2. 민사책임 91
• 3. 共同補償制度(Joint Compensation System) 97
• 4. 민사책임과 공동보상제도의 관계 98
• Ⅲ. 독일 98
• 1. 토양환경보호 및 책임법제의 배경 98
• 2. 土壤保護特別法과 각 州別 立法例 101
• 3. 환경책임법(UmweltHG) 105
• 4. 연방토양보호법(BBodSchG) 109
• Ⅳ. 영국 112
• 1. 토양보호책임법제의 배경 112
• 2. 1990년 환경보호법(Environmental Protection Act 1990) 114
• 3. 1995년 환경법(Environment Act of 1995) 116
• 4. Common Law상의 민사책임 120
• Ⅴ. 日本 123
• 1. 土壤保護法制의 成立과 變遷 123
• 2. 토양오염규제 및 책임법제 127
• 3. 土壤汚染에 대한 對處와 土壤汚染對策法 133
• 제4절 外國 土壤保護法制의 比較法的 檢討 136
• Ⅰ. 序言 136
• Ⅱ. 汚染地域의 管理 및 復元體系 137
• 1. 汚染對象地의 조사와 오염지역지정 137
• 2. 오염부지의 관리와 淨化措置 139
• 3. 행정기관 상호간의 업무분장 140
• Ⅲ. 法的 規律과 制度 141
• 1. 체계적이고 包括的인 立法 141
• 2. 책임규정의 定立 142
• 3. 汚染敷地에 대한 復元基金 146
• 제4장 土壤汚染事故의 私法的 救濟 148
• 제1절 環境汚染被害의 救濟法理 148
• Ⅰ. 序言 148
• Ⅱ. 被害救濟의 法的 構成 149
• 1. 각국의 임미시온 규제의 立法例 150
• 2. 우리 民法에서의 이론구성 157
• 3. 小結 167
• 제2절 事前的 救濟로서 民事上 留止請求 167
• Ⅰ. 留止請求權의 意義 167
• Ⅱ. 理論的 根據 169
• Ⅲ. 要件과 限界 171
• 1. 당사자의 범위 171
• 2. 청구권의 행사요건 172
• 3. 청구권의 내용 173
• 4. 受忍限度 판단에 대한 限界 174
• 제3절 土壤汚染事故의 民事上 損害賠償 175
• Ⅰ. 不法行爲로 인한 損害賠償 175
• 1. 故意․過失 175
• 2. 위법성 181
• 3. 인과관계 187
• 4. 무과실책임의 민법규정 적용 204
• 5. 小結 206
• Ⅱ. 土壤汚染事故의 契約上 責任 206
• 1. 序言 206
• 2. 책임의 근거 207
• 3. 책임의 한계 211
• 제4절 土壤汚染의 無過失責任에 의한 救濟 212
• Ⅰ. 槪說 212
• Ⅱ. 無過失責任 215
• 1. 토양환경보전법 제10조의3 215
• 2. 複數原因者의 책임 219
• 3. 책임의 면제 221
• 4. 책임의 歸屬主體 223
• Ⅲ. 個別 環境法에 의한 土壤汚染責任 227
• 1. 환경정책기본법 제31조 227
• 2. 폐기물관리법 230
• 3. 鑛業法 및 鑛害防止法의 적용 232
• Ⅳ. 立法論 233
• 1. 序言 233
• 2. 입법방향에 대한 검토 234
• 제5절 環境紛爭調整制度에 의한 被害救濟 241
• Ⅰ. 槪要 241
• Ⅱ. 法的 根據와 特性 242
• 1. 법적 근거 242
• 2. 환경분쟁조정제도의 특성 244
• Ⅲ. 紛爭調整制度의 檢討 245
• 1. 類型과 現況 245
• 2. 분쟁조정의 성립과 효력 247
• 3. 문제점 248
• 제5장 結論 251
• 參考文獻 259
• Abstract 279