토양환경보전법상 토지소유자의 책임에 있어서 인과관계에 관한 고찰 - 대법원 2012. 1. 26. 선고 2009다76546 판결 및 CERCLA에 따른 복구비용청구 관련 시사점을 중심으로 -

A Study on Causation on the Liability of Landowner under Korean Soil Environment Preservation Act

Recently, Korean Supreme Court dismissed the lawsuit of a landowner(“P”) claiming that his neighbor(“D”) who leased his land for gas station businesses for 12 years shall be liable for P's damages and clean-up costs. In this case, TPH, BTEX was found in both sites owned by D and P, which was caused by leaking from a pipe of underground storage tank which was located in D's site but owned by a tenant. The Soil Environment Conservation Act prior to May 25, 2015 says that the owner of a facility at the time of the contamination shall be responsible for losses or damages and is to clean up the land, in case the facility causes the soil contamination. Unlike CERCLA, Korean law requires “causation” in seeking clean-up costs from facility owners. In this case, Korean Supreme Court says that the action of the owner does not have to cause soil contamination but that the plaintiff shall establish a cause-and-effect relationship between the facility and the contamination. The court did not provide its clear logics why it denies the causation in this case. Supposedly, it is on the ground that the land itself is not commonly the physical cause of the contamination of the adjacent site but merely the medium of spreading contaminants. This paper analyses that the liability of landowners over soil contamination is due to landowners' status to foresee, control and manage the risk of the soil contamination, not physical characteristic of soil. For this purpose, this paper refers to rules and precedent cases relation to CERCLA of United States and other precedent cases of Korean courts and constitutional courts. It is concluded that I do not concur to the opinion of the above decision of the supreme court since causation shall be established in case the landowner foresaw and took the risks of the soil contamination in leasing his land and such risk realized when the tenants failed to manage its underground oil tanks. This paper further introduces and reviews the new rules of the landowner's liability of landowners over soil contamination as amended and come into effect as if May 25, 2015, following the decision of the Korean Constitutional Court which held the previous rules of the landowners over the soil contaminants unconstitutional.