환경행정소송상 소송요건의 문제점과 한계－ 원고적격을 중심으로 －

Abstract

Environmental Administrative Litigation is a control procedure enforced by courts on illegal environmental administrative actions in order to protect the environment. A court’s possible solutions for environmental disputes are limited not only by its authority which is restricted to the interpretation and application of relevant Statutes but also by the fact that a lawsuit may only proceed on satisfaction of its jurisdictional elements. Not unlike general administrative litigation, the standing requirement in environmental administrative litigations performs its function to filter administrative actions to be enforced by the courts. In other words, the standing requirement determines the scope and limitations of judicial review in such administrative actions. Thus one must recognize the need to expand the court’s power for purposes of environmental protection while acknowledging the limitations of the court’s power based on concepts of separation of power. According to Korean judicial precedent, people residing within the Environmental Impact Assessment (EIA) area are de facto presumed to have standing in lawsuits while people residing outside the area are required to prove their standing. Such judicial precedent is considered to be a step-forward in comparison to previous case law which completely denied standing to people residing outside the EIA area. While maintaining this line of legal policy, going forward, it will be necessary to find a more rational legal base of reasoning. Given the seriousness and distinctiveness of environmental issues, traditional litigation measures or legal principles may be insufficient solutions. To overcome this difficulty, it is worth to review the Verbandsklage of Germany or The Public Trust Doctrine of the U.S. as possible candidates to deal with the weaknesses of our litigation system which is based on personal relief to settle environmental conflicts.