環境侵害의 留止請求

• 영문명: Seeking injunctive relief for the environmental invasions
• 발행기관: 한국재산법학회
• 저자명: 金相天(Kim, Sang Chun)
• 간행물 정보: 『재산법연구』財産法硏究 第27卷 第1號, 389~427쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

Traditional harm by an interference such as smoke, heat, noise and quake from the neighborhood usually ended with an agreement between the parties because it was traditionally thought of a kind of private nuisance. However, as industrialization has heated up, the harm by chemical smoke and toxic water from the factories pervades the widespread area and it causes serious legal disputes. And the variation of the range, degree and type of harm requires us to review the legal theories and remedies to cope with the environmental interference. The remedies for invasions of environment generally have two categories such as preliminary and post-factum remedies. As one of the preliminary remedies, injunctive relief is a more useful method than money damages, but the courts may limit or even refuse injunctions for the reasons that if the defendant is carrying on socially useful or economically important activities, the injunction ordering to close the defendant's operation may do more harm than good. Courts should weigh the good over the harm with regard to the industrial aspects to grant a plaintiff's claim for injunctive relief. However, if gross negligence of the defendant(the wrongdoing industry) is proved, courts should issue an injunctive relief with its findings of the fact that the defendant violated the duty to care of a reasonable person. article 217 of the Korean Civil Code as a legal ground for injunctive relief is indefinite in view of some aspects. For example, the text of the Article is too simple and abstract to capture its meaning since it prescribes the phrases such as "something like this, etc", "interfering with the use of the land", "not to inflict pain on daily life", "reasonable measure", "usual use of the land", and so on. Therefore, we need another process to interpret the meaning of the article. In addition, the neighborhood Article has its limits and can not fully solve the problem with regard to private nuisance. So, I argue that to adopt article 217 as a legal ground of preliminary remedies for environmental harm needs some legislative feedback.

목차

Ⅰ. 序

Ⅱ. 留止請求의 意義및 法的性質

Ⅲ. 比較法的 考察

Ⅸ. 留止請求의 法的 構成

Ⅴ. 結論

키워드

유지청구 수인한도 환경침해 유지명령 Nuisance Immission Seeking injunctive relief Limit of tolerance Environmental invasions Injunction Nuisance Immission