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A Critical Review on Legal Issues and Problems of the so-called "Four Major Rivers Case"

  • Public Land Law Review
  • Abbr : KPLLR
  • 2016, 73(1), pp.131-158
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Namchul Chung 1

1숙명여자대학교

Accredited

ABSTRACT

On December 10, 2015, The Supreme Court of Korea has finally held, that a "Four Major Rivers Project" which the South Korean government has promoted, is lawful. However, some doubts such as environment disruption and a rough-and-ready construction etc. have been raised. These problems are to some extent revealed in the results of government audits. Although the Supreme Court of Korea has just convinced the original decision of a High Court, the decision of the Supreme Court has judicially some problems. In the so-called Four Rivers case the Supreme Court has not reviewed the characteristics of an administrative planning and the principle of balancing in depth and has judged them superficially. Even though this criterion of illegality can change depending on the subject of the appeal litigation, the Supreme Court did not explicitly confirm the object of the appeal litigation. It did not indicate problems of the original decision which did not take full account of the characteristics of an administrative planning and the principle of balancing. Especially poor environmental impact assessment and insufficiency of convergence procedures etc. cannot be procedural illegality, but they should be considered in the process of balancing. If they were not considered, it could be illegal. Nevertheless, in this case there is only a mere superficial approach to the case through the recurring the precedent. But it does not consider in depth whether these procedural defects have a particular impact on the process of the balancing. The High Court does not distinguish between the defects of the balancing and that of the discretion definitely. The Supreme Court has overlooked the inconsistency of the upper and lower plan. It shows that the administrative planning has been made not systematically. The so-called Four Major Rivers case once again showed the limits of judicial judgments with respect to the environmental problems relating to the large-scale public projects. Even though it is difficult to predict the size or the scope of the environmental damage right now, the damage will reach to the future generations as well as the current generation. In these judicial judgments on large public projects the standing in an administrative litigation is very limited. In recent years with the strengthening of procedural control in the European Union, the objective administrative control in Germany has been emphasized. In this regard the public interest litigation, such as the Verbandsklage in Germany or the class action in USA, should be introduced. However, the debate is whether the structure of the traditional subjective remedies in harmony with the introduction of these proceedings. In the specialized environmental litigations, the expansion of the standing based on the individual rights is very limited. Thus it is necessary to admit of standing for environmental organizations which meet certain requirements. In future laws and regulations in connection with the maintenance of large-scale public project have to be modified, and the procedural requirements must be complemented.

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