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A Study on Judicial Precedents of Dam Discharge-Triggered Floods

  • Public Land Law Review
  • Abbr : KPLLR
  • 2009, 46(), pp.83-112
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

LEE SOONJA 1

1고려대학교

Accredited

ABSTRACT

A government would have its own commitments to providing its people quality water supply systems and preventing potential natural disasters resulting from floods; actually, an urgent need to respond to those commitments led to the construction of artifactual dams all over the country. Contrary to such generic expectations, however, reckless dam construction projects and the resulting mismanagement have cost us lots of casualties and property damages. In spite of that, people did not take such losses seriously as they were, which they rather considered nothing more than natural disasters, not man-induced ones. As for now, pursuant to Article 2 & 5 of the National Compensation Act, one could file claims for damages against the Government in case he/she believes that they are attributable to a governmental mismanagement or any other governmental malfunctions in that either its sudden water discharge or neglect of duties to notify possible affected residents of the said discharge in advance has caused the foregoing casualties or damages. With regard to such dam-related mismanagement and malfunctions, this study took the following four aspects into account: (1) Physical conditions of a dam, such as location, structure, functions, etc.; (2) Determination of flood control capacity or flood control method; (3) Regulated dam discharge based on specific rules on dam discharge; and (4) Notice of dam discharge Precedents hold that any government mismanagement or malfunctions in accordance with the foregoing (1) and (2) were negated, while, in case of (3) and (4), mixed precedents of rulings were found. This study addresses whether those two cases are subject to Article 2 or 5 of the same act. Furthermore, it’s also explored by the used of judicial precedents whether an aspect related to any neglects of duties or obligations to take preventive measures can be referred to in judging the said mismanagement or malfunctions. Incidentally, since public facilities, such as dams, get more and more varied and complex, which, in turn, required their management to get more and more complicated and sophisticated, it’s obvious that there may be a case where it will take cooperation from applicable authorities to decide whether a proper management has been done, which is why a failure to take preventive measures against contingent risks is often considered in judging whether there has been any mismanagement or malfunctions attributable to the government. In addition to that, there is an urgent need to come up with a new system to put floods and related damages under control based on a whole new approach. Also needed are trainings and educations tailored to those in charge of operating and managing dams that are more likely to cause disasters than other social infrastructure and more susceptible to natural changes.

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