According to consistent precedents of the Supreme Court, environmental rights sanctioned under private laws do not have their legal basis in the provisions of the Constitution. Also, the Supreme Court has sporadically recognized private-law rights to sunshine, view, religious environment, educational environment, etc. on the condition of ‘exceeding the limit of patience’, under the premise that claims for removal of disturbance cannot be recognized directly on the ground of environmental rights unless there are explicit provisions which recognize environmental rights as such under private laws.
In the environmental-right theory which is one of the theories regarding legal basis of an injunction, it should be noted that an environmental right can only be recognized when the subject, object, contents, method of exercise, etc. of the right can be concretely established in the light of explicit legal provisions, purposes of relevant laws and natural reasoning. Therefore, the precedents of the Supreme Court have firmly established that claims for removal of disturbance cannot be sanctioned directly based on environmental rights when there are no explicit legal provisions recognizing environmental rights as such under private laws. In connection with the issue of legal basis of an injunction, there is also another view that notes the scope of remedies for the sufferer is inevitably limited in sofar as the existing real-action theory is held fast to. Under these circumstances, some formidable opinions which recognize concrete effects of environmental rights have come to the fore of late and a few lower courts have accepted such arguments in their judgments. And a judgment by the Supreme Court (25 September 2008, 2006c49284), though not published, confirmed that the original ruling (the Daejeon High Court, 21 June 2006, 2002b6362) which decided that ”the above-mentioned residents have the rights to demand the suspension and prohibition of the digging works“ did not have any illegality of misunderstanding legal principles.
Under the development of such judicial precedents, this paper starts with raising the issue of whether or not an injunction application cab be filed on the basis of the environmental-rights provisions of the Constitution. With regard to the legal nature, contents and effects of the environmental-rights provisions of Article 35 of the Constitution, the opinions of some domestic scholars of the constitution and environmental laws have been quoted in this paper which contend that environmental rights can be regarded as concrete ones to demand the removal of any infringement with regard to the environment on the basis of Article 35, Paragraph 1 of the Constitution. Such opinions provided much help for preparing this paper.
The following is the conclusion of this paper, which provides a brief explanation for the recognition of environmental rights as concrete ones and the legal possibility of an injunction based thereon:1) In practice, some hope and argue that forward-looking court decisions should be accumulated, which draw the statutory grounds of an injunction directly from environmental rights. Accordingly, in furthering such point of argument and from the standpoint of sympathizing with preceding studies, this paper proposes that the legal principle of the public trust doctrine should be incorporated in Article 35 of the Constitution as the basic thought of acknowledging the legal principle of environmental rights.
2) This paper totally supports the view that the provision of Article 35, Paragraph 2 of the Constitution saying “The substance and exercise of environmental rights shall be determined by Act”, and ‘the purposes of provisions of laws’ and ‘the natural reasoning’ cited by the Supreme Court should be presented as the logical basis for recognizing the concrete nature of environmental rights, and not vice versa for refuting it. When the so-called environmental rights provision was first introduced in the Constitution totally amended on 27 October 1980, Article 33 provided that “All citizens shall have the right to live in clean environment”, without any legal (reservation) basis clause regarding the substance and exercise of environmental rights. And then, Article 35, Paragraph 2 of the Constitution totally amended on 29 October 1987 had a legal basis clause, which has remained unchanged thereafter. Accordingly, on the back of preceding researches and for serving the purpose of realizing a nation of clean environment, the author is of the opinion that it is necessary to clearly recognize and declare the concrete nature of environmental rights in the constitutional frame. It should be carefully considered to delete the legal basis clause of Article 35, Paragraph 2 of the Constitution providing that “The substance and exercise of environmental rights shall be determined by Act” and introduce instead a provision which represents the legal principles of the public trust doctrine. By doing so, with regards to the issue of its legal basis, an injunction could be realized on the basis of the environmental rights provided in Article 35 of the Constitution.