프랑스에서의 석면피해와 국가배상책임

다국어 초록 (Multilingual Abstract)

Asbestos was used in ancient times due to its resistance to fire.
Asbestos use remained moderate until the end of the nineteenth century, when the industrialisation of society meant that protection from fire and heat was necessary. However, Asbestos was known as a material that can lead to lung cancer and other diseases. For that reason, France and the United States, Japan and other industrialized nations, most take steps to prohibit asbestos was used.
This state of affairs is compounded by the significant lapse of time before asbestos-linked pathologies manifest themselves. It is therefore understandable that there is a regular increase in the number of known victims and in the lawsuits filed by victims seeking compensation.
In France, asbestos victims can obtain compensation in several different ways. It is a remedy through the FIVA(Indemnification fund for asbestos victims) and the Court. The FIVA aims to compensate the various types of harm suffered by asbestos victims(regardless of whether or not the exposure was occupational). FIVA which ensures full compensation for harm suffered by asbestos victims.
On the other hand, where the FIVA considers that the statutory conditions governing indemnification are not met, it notifies its refusal to the applicant by registered letter with return receipt requested, which contains the reason for the refusal. The FIVA must also inform the applicant of the timeframe(two months) and methods of filing an appeal.
An appeal is possible in three cases: if the indemnification request was rejected by the FIVA, if an offer was not made within 6 months, or if the FIVA offer was refused. Appeals are heard by the Court of Appeals that has jurisdiction over the applicant’'s place of residence. An appeal on points of law before the French Supreme Court is possible if the Court of Appeals does not find in favour of the victim. However, certain asbestos victims have not hesitated in seeking compensation in other ways and in calling the State’s liability in question before the administrative courts.
The French administrative courts have ruled on the State’s liability in asbestos cases on several occasions. Indeed, on 30 May 2000, the Marseille Administrative Court ruled against the State for not having legislated before the Decree of 17 August 1977 concerning specific safety measures applicable in establishments where the personnel is exposed to the effect of asbestos dust and for not having requested a scientific study on the subject before 1995, when the French National Health and Medical Research Institute published a study. The French Labour Code entitles the State to limit employers’ rights to determine working conditions in the field of health and safety.
These decisions were confirmed by the Marseille Administrative Court of Appeals on 18 October 2001. The supporting arguments submitted, namely the delayed reaction by other States and the difficulty at the time of carrying out a study aimed at specifying the exact nature of the risk, were not accepted. The French State was then criticised for merely having transposed the 1987 and 1992 European Directives into French law, without the resulting reduction in exposure thresholds being justified by precise scientific data.
The administrative magistrates held that the State could not claim to have acted responsibly by pleading compliance with European standards, which is necessary but not always sufficient. The State was held liable, both on the grounds of its shortcomings in the prevention of risks and on the grounds that its regulations were not sufficient and were not adopted early enough to deal with these same risks.
It is not surprising that the French State was held liable, given its delay in dealing with the issue of asbestos, compared to other European countries.
On 3 March 2004, the French Supreme Administrative Court upheld the ruling and confirmed the State’s liability.

목차 (Table of Contents)

• Ⅰ. 머리말
• Ⅱ. 석면피해와 구제제도
• Ⅲ. 석면피해와 국가의 책임
• 1. 국가의 책임을 인정한 사례
• 2. 2004년 판결의 검토
• ３. 2004년 판결의 평가
• 4. 2004년 판결의 향후과제
• Ⅳ. 맺는말
• 참고문헌

참고문헌 (Reference)

1 박태현, "우리나라 석면 피해 구제를 둘러싼 법적 쟁점의 검토 -피해보상기금 조성문제와 석면노출의 증명책임 경감문제를 중심으로" 비교법학연구소 2 : 113-144, 2009

2 박종원, "석면으로 인한 건강피해 구제를 위한 법제연구" 한국법제연구원 2008

3 南慎二郎, "韓国のアスベスト産業とアスベスト災害・公害" 15 (15): 2007

4 浜島直子, "沼田正樹․森中高史․高木直人" 自治体法務研究 (6) : 2006

5 北村和生, "フランス行政賠償責任におけるHIV感染血液訴訟" (2511) : 1997

6 北村和生, "フランスにおけるアスベスト被害と国家賠償責任" (311) : 2007

7 棚瀬孝雄, "アスベスト被害補償システムの設計" (826) : 2006

8 "http://www.séat.fr/rap/r05-037-1/r05-037-1.html"

9 "http://www.fiva.fr/pdf/rapport-fiva-04-05.pdf"

10 "http://www.fiva.fr/documents/loifiva.pdf"

11 "http://lavalse.tistory.com/89"

12 E. D. C. E, "Responsabilitéet socialisation du risque"

13 C. A. A. Marseille, "Minstre de l'Emploi et de Solidaritéc"

14 C. E, "Ministre de l'Emploi et de la Solidaritéc/"

15 T. A. Marseille, "M. Xueref c/ Ministèe de l'Emploi et de laSolidarite, L. P. A."

16 H. Ardousse, "L'amiante : la crétion d'un fonds d'indemnisation pourcanaliser〈une bombe àretardement>, Rev" Recherché Juridique-Droit Prospectif 2001

17 C. Guettier, "L'Etat face aux contaminations liés a l'amiante" A. J. D. A 2001

18 Céile Manaouil, "Compensation of AsbestosVictims in France" 25 (25): 2006

19 F. Labrousse, "Amiante, J. C. E ., Fasc. 752, no. 2 et s"

20 FIVA, "4èe Rapport d’'activité au Parlement et au Gouvernement" Juin2004 2005