환경오염피해구제법상 정의규정과 손해배상책임 규정의 문제점에 관한 소고

Study on the issues of defined regulations on the act on liability for environmental damage & relief, and regulations on the liability for compensation.

The ‘Act on Liability for Environmental Damage & Relief was enacted in December 31, 2014 to be enforced from January 1, 2016, and according to the enactment of this Act. According to the enactment of this Act, there are several literatures that point out issues on the provisions and interpretation of them. The purpose of this study is to review these literatures to point out several issues in the defined regulations in the Act on Liability for Environmental Damage & Relief, and also in the regulations on the liability for compensation to provide opinions. (1) In the defined regulations, there were issues pointed out that in the article 2, subparagraph 1 should be deleted, in the Article 3, the business operator of the facility should be replaced to be mentioned as possessor of the facility, and phrase “having realistic governance on the relevant facility” should be deleted. (2) Regarding the issues pointed out on the objective requirements of the liability for compensation, first, in the provisions for joint liability in Article 10, it was defined as “in the case of having two business operators causing environmental damage”, which means that if there are two or more causes of ‘damage’ instead of causes for ‘pollution’, it will be shown as joint liability and is unclear which business operator actually caused the damage. Second, the presumption of causal relationship is defined in Article 9, and as this is a regulation on the presumption of the fact by law, the burden of proof is converted. Accordingly, disproof is insufficient to break this presumption by law, and the counter-fact must be proved through the real proof, and here, proof on the nonexistence of the presumption of fact by the assailant can be considered as ‘real proof’. Also for the subjective requirements, the no-fault liability in Article 6 shall be considered as danger liability. (3) In the relationship between the provisions of Article 5 and ‘limited liability’ of Article 7, right of claim can be exercised to result in compensation that is higher than the liability range in which case, the purpose of having provisions on limited liability mentioned in the main body of Article 7 is overshadowed. On the other hand, the Act on liability for environmental damage & relief includes Article 9; presumption of causal relationship in the objective requirement on the establishment condition of the liability for compensation, and Article 6; acknowledging the no-fault liability (danger liability) as the subjective requirement. This provides significant convenience on the proof of condition for the protection of the victim, which at the same time reduces the limit of compensation to 200 billion Korean Won. Accordingly, when claiming for compensation that exceeds 200 billion Korean Won regarding other law such as Civil Code of Article 5, requirements defined in the Civil Code and other Act(causal relationship, mistake, etc.) should be throughly reviewed and in this sense, provisions of compensation liability limit set forth in the main body of Article 7 has significance in it. With all the above, it is certain that the provisions of subparagraph 1 and 2 of Article 7 have the same significance.