환경침해에 대한 유지청구의 인정 근거로서 민법 제217조에 대한 고찰

Abstract

As society develops and becomes more complex, damage caused by environmental infringement activities such as soil pollution and waste pollution is increasing. Environmental issues are considered an important key to determining our future. In the case of damage caused by environmental infringement, the first and foremost remedy is to claim compensation for damages afterwards. However, once damage caused by environmental infringement occurs, it is difficult to recover to its original state, and even if it is recovered, it is bound to take a lot of time and money. For this reason, proactive prevention is more important than follow-up relief in environmental infringement problems. Generally, an “injunction” is presented as a preventive remedy against environmental infringement. An injunction is the right to demand a certain action or inaction from the perpetrator when damage is occurring or is likely to occur due to environmental infringement. However, since it entails the prohibition of certain acts, it can excessively restrict the property rights of the perpetrator. Therefore, a clear legal basis is necessary to recognize an injunction. There are various conflicting views on the legal basis for recognizing an injunction, including the perspective that it is based on right to claim real rights, the perspective that it is based on environmental rights, and the perspective that it is based on personal rights. Supreme Court considers right to claim real rights as the basis for an injunction. The prevailing view also considers right to claim real rights as the basis for an injunction. It is a general interpretation of civil law that Article 217 of the Civil Code cannot serve as the basis for an injunction against environmental infringement, given that it is a regulation established with reference to Article 906 of the German Civil Code and pertains to neighborly relations. Article 217 of the Civil Code imposes an active duty on landowners to prevent infringing activities. Therefore, the interpretation of Article 906 of the German Civil Code, which is structured to limit the scope of the victim’s right to demand the removal of interference, should not be directly applied. Article 217 of the Civil Code provides a limited description of types of environmental infringement and imposes a duty on landowners to prevent infringing activities. Therefore, this paper aims to examine Article 217 of the Civil Code from a new perspective, departing from the traditional interpretation.