사전배려원칙에 관한 공법적 고찰

Risk Management of Living Modified Organisms - An Examination of the Precautionary Principle under the Public Law -

Technological risk is inherent in the human condition and is therefore inevitable and ubiquitous. Such risk urges the importance of abstract risk management that is consistent with the progresses made in such modern technologies as nuclear energy, biotechnology, and other high technologies. The precautionary principle acts as an important foundation for regulation and management of risk. Prevention is of the greatest importance and the matter of the best possible method. This article focuses on the precautionary principle as a form of risk management. To begin, it is necessary to survey the significance of the precautionary principle. As such, the article begins by taking a triangular position on the notion of risk and analyzes the various categories of risk. For this purpose, Part deals with the judgment of safety, the safety standards, the responsibility of substantiation, and the risk responsibility, which is a kind of national indemnities. Next, Part explores the question of whether various approaches that have been adjusted and developed within the current public law system can solve problems when the application of the precautionary principle comes into a collision . In relevance to the precautionary principle it has conflicts with cost-benefit analysis, Sanitary and Phytosanitary (SPS) agreement, and civil rights. Part raises several issues and searches the effectiveness of amendment proposals related to the introduction of Globally Harmonized System (GHS), an application of administration procedure, and an advisable form of legislation. All of the three mentioned can be an effective counter plan, the most productive of them is the advisable form of legislation. In conclusion, this article proposes that the decision of administration has to be reached not only through benefit analysis but also the constitutional principle of comparison. In addition, the judiciary branch can not participate in the decision-making process because it cannot withhold control on unreasonable decisions that the administration acts.