환경책임과 환경피해보험제도의 제도화 방안에 관한 연구

Abstract

The purpose of this study is to yield the adoption of an environmental liability system and environmental impairment liability insurance in Korea. Currently, two legal remedies address damages to the environment in Korea: first, measure pertaining to the domain of Public Law such as administrative litigation and the system of “Environmental Dispute Resolution,” and; second, procedures under Private Law such as civil action. However, a crucial issue remains unresolved, for a majority of said measures depend on civil litigation and no prescript such as an environmental liability law has been formulated. Devising and enacting an environmental liability law is an urgent task in Korea because the characteristics of environmental cases vastly differ from those of other cases with regard to liability limit and source of responsibility. Hitherto, adopting such law and an environmental impairment liability insurance law has proved to be difficult in Korea owing to the strong opposition from the business sector, but the necessity of these legal statutes has been increasing over time, following an international trend of eco-friendliness as well as a steep rise in public awareness of the need for environmental protection. Korea stands at a critical juncture because even if the much-needed laws are adopted, their effective implementation is necessary to ensure present and future viability of such laws. In this vein, the current study examined the environmental impairment liability insurance, as it serves as a crucial piece in the effective implementation of an environmental liability law. There are three steps to adopting an environmental liability law and an environmental impairment liability insurance law. Accordingly, this study first reveals the relationship between environmental liability and environmental insurance. Second, it analyzes the contents of the law and presents feasible solutions. Last, it suggests the legislative direction for an environmental insurance law. The synopses of the chapters are as follows: Chapter 1 provides the background and necessity of this study as well as a review of the preexisting literature on environmental liability laws. Chapter 2 defines the concept of environmental liability and environmental insurance, in addition to delineating in detail the relationship between the two. That an environmental liability law is an essential prerequisite to increasing the demand of environmental insurance is demonstrated in this chapter. Moreover, the current state of the existing environmental liability system and environmental impairment liability insurance law in Korea is discussed, including an analysis of the problems persistent in Korean legal remedies addressing the damages to the environment. Chapter 3 examines the necessity and possibility of introducing an environmental liability law, subsequently suggesting the legislative direction for such law and presenting possible improvement to the existing laws. Furthermore, this chapter puts forward in-depth research on the concept of environmental liability in conjunction with defined scope and objects of application, including the issues of burden of proof. Regarding the scope of liability, the chapter examines conservation of the ecosystem, joint and several liability, retroactive liability, and compensation under the legal operation. Finally, Chapter 4 forwards the legislative direction for an environmental insurance law, providing the specific contents of this law such as the characteristics of environmental insurance, insurance rate, scope of security, limit of contribution, etc. The current status of foreign environmental impairment liability insurance systems is also examined.