환경권의 실체적 구현을 위한 입법 개선방안 = The Practical Implementation of Environmental Rights

다국어 초록 (Multilingual Abstract)

Ⅰ. Background and Objective
1. Need of Activation of Environmental Rights
ㅇ Since the enactment of the 「Anti-Pollution Law」 in 1963, environmental legislation has become regularized, yet its implementation has been limited as a specific right due to the judiciary's passive interpretation of environmental rights
ㅇ 2020 marks the 40 year dismissal of environmental rights as a constitutional law since the 8th Constitutional Amendment in 1980, yet environmental rights are still insufficient to cope with various environmental problems such as climate change, air pollution and microplastic, which threatens the primary survival conditions for humans to live a decent life.
2. Measures for the Activation of Environmental Rights
ㅇ The objective of the following research is to provide a foundation for social discussion on the development of environmental rights not only for us living in the present, but also for the future generations, and an ecosystem that coexists with humans.
Ⅱ. Theoretical and Legal Effectiveness of Environmental Rights
1. Effectiveness of Environmental Rights
❏ Independent Rights of Environmental Rights
ㅇ The Constitutional Court ruled that the legal aspects of environmental rights are comprehensive rights including both liberal and social traits.
❏ Specific Rights of Environmental Rights
ㅇ The Supreme Court generally denies the fact that environmental right regulations have the effect of directly constraining government agencies, allowing the public to seek the relief of their rights from the courts.
2. Awareness of Problems
ㅇ Due to issues such as the destruction of ecosystems and climate change, humankind has been both directly and indirectly exposed to heatwaves, water shortages, reduced agricultural production, and the increase of natural disasters and infectious diseases.
ㅇ As the preliminary basis for survival, the ‘environmental maintenance’ of clean air, water food and other natural resources must be kept, otherwise guaranteeing the basic rights of all citizens is either meaningless or impossible.
ㅇ If the current situation of human desire provoking incompatible environmental destruction continues in the coming decades, the foundation of human survival will be unlikely to recover beyond the critical point and our lives may be unsustainable. Accordingly, it is time to bring the change of perception of the value for ‘environmental right’ under the premise of all fundamental rights.
Ⅲ. The Practical Implementation of Environmental Rights
1. Improvements for Legislation
❏ Revision of Environmental Constitution
ㅇ First, the basic significance of the ‘environment’ values based on the Constitution must be recognized and the 「Constitution」 should stipulate the ‘Principle of Environmental State’, indicating that the government pursues the objective value of the environment.
ㅇ Second, the government should secure the independence and particularity of environmental rights by removing the legal-reservation clause to ensure the core contents and exercise of its authority on the environment.
❏ Enactment of the 「Environmental Organization Procedure Act」
ㅇ Access to judiciary is a fundamental element of constitutionalism and at the same time acts as a key element for efficient enforcement of environmental laws. Reviewing such measures as the key to enhancing judicial access rights by granting eligibility as a plaintiff to environmental organizations with certain requirements is needed.
- First, ‘Aarhus Convention’, which urges to guarantee the ‘access to environmental information’, ‘public participation in environmental decision-making’ and ‘access to justice’ should be joined.
- Second, the 「Administrative Procedure Act」 must be revised or the 「Environmental Organization Procedure Act」 must be enacted in order to enable not only humans as individuals but also organizations, which meet certain requirements, to be allowed as the subject of environmental rights.
- Third, the 「Environmental Damage Act」 should be enacted to allow environmental organizations to stop or prohibit violation on natural environment or the ecosystem, such as water, air, and climate, which cannot be the object of property rights, and can be the subject of claims for drainage, compensation, and restoration of existing violations.
2. Improvement Plan for Environmental Administration
❏ Rearrangement of Administrative Relief for the Guarantee of Environmental Rights
ㅇ ‘Environmental Rights Protection Committee’ needs be established to manage the entire process for damage investigation on environmental pollution, environmental dispute settlement, and environment pollution damage relief, in order to solve the problems due to the disperse of the current environmental protection system, and to achieve and effectively fulfill the protection of people’s environmental rights.
❏ Reinforcement of Environmental Administrative Procedure Participation Right
ㅇ For effective participation in the environmental decision making process, the subjects, frequency and locations of public hearings should be expanded, and the opinions of the residents in such processes should be substantially reflected in terms of interactive communication rather than a one-way convergence of opinions.
❏ Guarantee of Rights for Environmental Information Access and Use
ㅇ Concerning the environmental impact assessment report, the transparent release of information, availability of substantial information access, and timing adequacy of information offering should be thoroughly reviewed. Regarding the request of individual environmental information, anyone should be able to access it without separate requests, and the release of active and transparent information should be guaranteed.
❏ Others
ㅇ The system for preventing environmental accidents should be reinforced for initial and proactive relief from a posterior and passive relief.
ㅇ Reviewing measures to strengthen the environmental executive power is required, such as securing the effectiveness of guidance, inspection, and administrative disposition.