SOFA 제4조와 환경손해

• 영문명: Article 4 of Status of Forces Agreement and environmental contamination: a distinction between restoration and compensation
• 발행기관: 한국민사법학회
• 저자명: 김기창(Kim, Kee-Chang)
• 간행물 정보: 『민사법학』제26호, 31~69쪽, 전체 39쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2004.09.30

영문 초록

Environmental contamination caused by overseas installations of United States armed forces has so far been discussed mainly as a topic for international environmental law. This article takes a different approach. It is suggested that environmental damage caused by United States armed forces stationed in a host country should first of all be dealt with in accordance with the laws and regulations of the host country. In Korea, just as in Japan or in Germany, the status of US armed forces stationed within Korean territories is regulated by a mutual agreement (SOFA). Apart from clearly defined privileges and immunities expressly granted by the agreement, the US armed forces stationed in Korea cannot lay any proprietary or territorial claim over the areas and facilities they use. Laws and regulations of Korea would thus apply to those areas and facilities (see Article 7 of SOFA). Any damage, including environmental contamination, to the areas and facilities will therefore give rise to civil claims which must be handled in accordance with Article 23 of SOFA and any applicable Korean laws and regulations. Article 4 of SOFA, however, provides that the US government is not obliged to restore the areas and facilities or to compensate in lieu of such restoration . Some writers have suggested that this provision would exempt the US government from civil liability for environmental contamination to the areas and facilities. The present author proposes a different interpretation. In Korea as well as in the US, restoration and compensation are distinct legal concepts. Their ordinary meanings differ as well. As a general rule, a party causing damage to other s property will be held liable to compensate (pay damages), rather than to restore the property. Article 4 of SOFA merely relieves the US from the duty to restore ; it does not relieve the US from tortious or statutory liability to pay damages which has nothing to do with any duty to restore. In the absence of any clear and unequivocal clause which expressly exempts the US from the duty to pay damages, it would be wrong to conclude that Korea has intended to waive all claims for damages in respect of loss occurred to the areas and facilities. Whether the US has improved or damaged the areas and facilities, it is not obligated to restore . But that does not mean that the US is entitled to cause damage and loss to the areas and facilities with impunity. This interpretation, it is suggested, is based on comity and equality of parties to SOFA and on generally accepted rules of interpretation applicable to international treaties.

목차

Ⅰ. 배상청구권의 행사 - SOFA 제23조

Ⅱ. 환경손해에 적용될 실체법 - ‘국제환경법’의 적용여부

Ⅲ. SOFA 제4조 제1항

Ⅳ. 맺는말

키워드

면책약정 원상회복 손해배상 contra proferentem rule 조약해석 선관의무 SOFA 주한미군 환경오염손해 restrictive interpretation exculpaory clause interpretation of treaty SOFA. environmental contamination US overseas installations contra proferentem rule duty ot restore restrictive interpretation