Summary
This chapter uses the structure, from the relevant precedent, for determining infringement of interests according to whether a person is inside or outside the area subject to assessment, without synthesizing facts about the project at issue.
4.1The Standard by Which the Path Opens
같은 오염 우려도 법이 설정한 영향권과 주장 자료에 따라 문턱이 달라진다. 판례가 구분한 개별적·직접적·구체적 이익과 일반적·간접적·추상적 이익의 경계를 유지할 때, 처분의 직접 상대방이 아닌 주민 A는 자기 생활상 이익이 침해된다며 행정청 B의 처분을 다투려 한다. 이런 장면에서 환경상 피해를 주장하는 사람이 모두 같은 부담을 지는지, 이 구제의 통로가 열리는 기준이 무엇인지가 문제 된다. 여기서 영향권과 입증은 법정 평가 범위와 피해 자료에 따른 자격 판단 구조를 뜻하며, 이 두 축이 문턱의 높낮이를 만든다.
해당 판례는 그 판단 구조를 두 지역으로 나누어 서술한다. 먼저 평가대상 지역 안의 주민에 대해서는 "공유수면매립과 농지개량사업시행으로 인하여 직접적이고 중대한 환경피해를 입으리라고 예상되는 환경영향평가 대상지역 안의 주민들이" 보호되는 개별적 이익을 갖는다고 본다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결). 이 문언이 가리키는 주체는 예상되는 직접적·중대한 환경피해의 영향권 안에 선 주민이고, 보호 대상은 쾌적한 환경에서 생활할 개별적 이익이다.
판례는 같은 문단에서 그 이익을 "주민 개개인에 대하여 개별적으로 보호되는 직접적·구체적 이익"으로 규정한 뒤, 이들에게 특단의 사정이 없는 한 침해가 사실상 추정된다고 본다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결). 이 구절이 고정 결론과 맞닿는 지점은 추정의 배분이다. 영향권 안 주민은 자료로 침해를 새로 증명할 필요 없이 입구에 이르고, 영향권 밖 주민은 침해 사실을 입증해야 같은 자리에 선다. 두 단계를 구별하지 않으면 사실상 추정이라는 법원의 배려가 전 주민에게 자동으로 확장되거나, 반대로 영향권 밖 주민의 입증 통로가 처음부터 닫힌 것으로 읽힌다.
그러나 이 구별이 만드는 손실도 분명하다. 구역 밖 실제 피해자가 더 큰 입증 부담을 질 수 있다. 피해가 가장 넓게 퍼진 오염일수록 평가대상 지역이라는 선 밖의 주민이 자료를 모으고 인과를 설명하기 어렵고, 그 부담이 곧 적격의 실질적 장벽이 될 수 있다. 저자는 이 불이익을 지운 채 결론을 말하지 않는다. 다만 판례가 열어 둔 경로는 남겨 두는데, 평가대상 지역 밖의 주민이라 할지라도 수인한도를 넘는 피해를 받거나 받을 우려가 있으면 침해를 입증함으로써 원고적격을 인정받을 수 있다고 본다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결). 따라서 평가대상 지역 밖이라는 이유만으로 모든 주민의 적격을 자동 부정할 수는 없다.
이 장면에 놓으면 A의 위치는 아직 확정되지 않는다. A가 평가대상 지역 안에 있는지 밖에 있는지, B의 처분이 어떤 평가 범위를 기준으로 하는지, A가 수인한도를 넘는 피해의 자료를 갖추었는지는 장면이 정하지 않았다. 다만 A가 처분의 직접 상대방이 아니라는 점만은 확정되어 있고, 그 경우에도 취소·확인으로 회복할 법률상 보호 이익이 있는지부터 살핀다. 영향권 안이면 추정이 도와주고, 밖이면 입증이 요구되는 차이만이 확인될 뿐, A의 실제 적격은 미확정으로 남는다.
따라서 이 구제의 입구는 단일한 문턱이 아니라 조건의 묶음으로 열린다. 해당 처분 취소·확인으로 회복할 법률상 보호 이익이 있고 소송유형별 신청 등 요건도 충족한 경우 통과한다. 반대로 일반적·간접적 공익 관심만 있고 개별적으로 보호되는 법률상 이익이 인정되지 않으면 문은 닫힌다. 여기에 평가대상 지역 안팎의 차이는 입증의 배분일 뿐, 밖이라는 사실 그 자체가 자격이 부정되는 사유는 아니다.
4.2The Conditions That Block Relief
그 결론은 개별적·직접적·구체적 이익과 일반적·간접적·추상적 이익의 경계를 그대로 유지한 채, 같은 환경상 피해를 주장하는 사람이라도 모두 같은 부담을 지는 것은 아니라는 점을 전한다. 이제 그 경계 안에서, 처분의 직접 상대방이 아닌 주민 A가 자기 생활상 이익이 침해된다며 행정청 B의 처분을 다투려 할 때, 구제가 허용되지 않는 조건이 무엇인지 살펴본다.
이 물음에 해당하는 원문은 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결의 판결요지 [2]이다. 위 요지는 공유수면매립면허처분 등에 관련된 규정의 취지가 "직접적이고 중대한 환경피해를 입으리라고 예상되는 환경영향평가 대상지역 안의 주민들이 전과 비교하여 수인한도를 넘는 환경침해를 받지 아니하고 쾌적한 환경에서 생활할 수 있는 개별적 이익까지도 이를 보호하려는 데에" 있다고 보았다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결). 이 문언이 가리키는 주체는 평가대상 지역 안의 주민이고, 보호되는 이익은 주민 개개인에 대한 개별적·직접적·구체적 환경상 이익이다. 한편 요지는 평가대상 지역 밖의 주민에 대해서는 별도의 조건을 붙인다.
그 조건은 바로 입증의 문제이다. 평가대상 지역 안의 주민에 대해서는 "특단의 사정이 없는 한 환경상의 이익에 대한 침해 또는 침해우려가 있는 것으로 사실상 추정되어" 원고적격이 인정되지만(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결), 평가대상 지역 밖의 주민은 처분 전과 비교하여 수인한도를 넘는 환경피해를 받거나 받을 우려가 있다는 것을 입증함으로써 원고적격을 인정받는다. 추정과 입증, 이 두 단계가 구별되어야 하는 까닭은 같은 환경상 이익이라도 법이 설정한 영향권 안에 들어오느냐에 따라 침해 여부를 누가 보여야 하는가가 달라지기 때문이다. 이 구별에서 이 절의 결론은, 일반적 간접적 공익 관심만 있고 개별적으로 보호되는 법률상 이익이 인정되지 않는 경우 법정 요건 중 하나라도 충족되지 않으면 구제의 통로가 닫힌다는 점이다.
이 결론에는 뚜렷한 불편이 따라붙는다. 법이 설정한 평가 범위를 좁게 잡으면, 가장 넓게 퍼진 환경 피해일수록 오히려 아무도 다툴 수 없게 될 위험이 있다. 평가대상 지역 밖에 사는 주민은 예상된 직접 피해의 범위에서 제외된 채, 자기가 받는 침해를 자료로 보여야 한다는 더 큰 부담을 짊어진다. 이 손실을 지우지 않고서도 결론을 유지할 수 있는 근거는, 판례가 지역 밖 주민에게 자동 부정이 아니라 입증의 길을 열어 두었다는 데 있다. 평가대상 지역 밖이라는 이유만으로 모든 주민의 적격을 자동 부정할 수는 없고, 오히려 침해 또는 침해우려를 입증하면 적격을 인정받을 수 있다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결).
이 장면에서 이 물음에 속하는 사실은, 처분의 직접 상대방이 아닌 주민 A가 자기 생활상 이익이 침해된다며 행정청 B의 처분을 다투려 한다는 점뿐이다. A가 평가대상 지역 안에 있는지 밖에 있는지, 수인한도를 넘는 피해 자료를 가졌는지는 이 장면에서 정해지지 않았다. 그러므로 A의 위치에 따라 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결의 추정 경로와 입증 경로 중 어느 쪽이 적용될지, 그리고 그 요건이 실제로 충족되었는지는 미확정으로 남는다. 확인할 수 있는 것은 판단 구조의 형태뿐이다. 보호 법규·처분의 영향·신청자 지위·효과 소멸 뒤 회복할 이익이 기록되어야 할 항목이라는 점도 앞의 조건이다(대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결). 장면으로 판정할 수 없는 나머지는 그대로 미확인이다.
이 절이 허용하는 결론은, 영향권 안의 주민과 밖의 주민에게 같은 문턱이 적용되지 않으며, 법이 보호하려는 개별적 이익이 인정되지 않는 경우 법정 요건이 하나라도 비면 구제가 허용되지 않는다는 좁은 판단이다. 반대로 허용하지 않는 것은, 평가대상 지역 밖이라는 지리적 사실만으로 주민 전체의 적격을 자동으로 부정하는 결론이다. 여기에 법률상 이익의 유무를 넘어 취소의 이익이 남는지까지 확정한 것은 아니므로, 다른 조건의 문제로 넘기지 않는다. 기간이 끝났으면 취소의 이익도 반드시 사라지는가?
4.3The Boundary That Remains When There Is No Data
처분의 직접 상대방이 아닌 주민 A는 자기 생활상 이익이 침해된다며 행정청 B의 처분을 다투려 한다. A가 다투는 대상은 B의 처분이며, A가 말하는 침해는 자기 생활상 이익의 침해이다. 그런데 법이 그 이익을 개인에게 보호하는 것으로 삼는지는 자료에 따라 드러나기도 하고 드러나지 않기도 한다. 이 경우 A와 법규 사이의 연결이 확인되지 않았다는 이유만으로 A의 주장을 바로 기각할 수 있는가, 아니면 판단 재료를 더 모아 둔 상태로 남겨야 하는가. 환경상 피해를 주장하는 사람은 모두 같은 부담을 지는가? 여기서 영향권과 입증은 법정 평가 범위와 피해 자료에 따른 자격 판단 구조를 뜻한다.
대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 평가대상 지역 안팎을 나누어 두 문턱을 제시한다. 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 관련 법규의 취지가 “환경영향평가 대상지역 안의 주민들이 전과 비교하여 수인한도를 넘는 환경침해를 받지 아니하고 쾌적한 환경에서 생활할 수 있는 개별적 이익까지도 이를 보호하려는 데에” 있다고 본 뒤, 그 주민들의 환경상 이익을 “주민 개개인에 대하여 개별적으로 보호되는 직접적·구체적 이익”으로 규정한다. 이 문언에서 보호의 주체는 주민 개개인이며, 보호되는 행위는 공유수면매립면허처분 등에 따른 환경상 이익의 침해이고, 문턱은 수인한도를 넘는 환경침해의 수령 또는 우려이다. 평가대상 지역 안 주민에 대해서는 “특단의 사정이 없는 한 환경상의 이익에 대한 침해 또는 침해우려가 있는 것으로 사실상 추정”되어 무효확인을 구할 원고적격이 인정된다고 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 덧붙인다. 같은 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 구 환경정책기본법 시행령(1992. 8. 22. 대통령령 제13715호로 개정되기 전의 것) 등 옛 법령명을 그대로 인용하며 판단한다.
위 근거와 결론 사이에는 판정 단계가 하나 놓인다. 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 평가대상 지역 밖의 주민이라 할지라도 처분 전과 비교하여 수인한도를 넘는 환경피해를 받거나 받을 우려가 있으면, 그 침해 또는 침해우려를 “입증함으로써” 무효확인을 구할 원고적격을 인정받을 수 있다고 본다. 이 문턱은 자동 부정이 아니라 입증을 통한 인정이며, 앞 문단의 사실상 추정과 대비되어야 한다. 그런데 A의 기록에 보호 법규·처분의 영향·신청자 지위가 들어오지 않아 피해와 법규의 보호 대상 사이 연결이 확인되지 않은 경우, 이 사항은 판단 재료가 특정되지 않은 미확정이다. 자격이 없는 것으로 확정된 불능과 미확정은 구별된다. 이 절의 결론은, 피해와 법규의 보호 대상 사이 연결이 확인되지 않은 경우, 판단 재료가 특정되지 않은 사항은 불능과 구별해 미확정으로 남긴다는 것이다.
가장 설득력 있는 반론은 구역 밖 실제 피해자가 더 큰 입증 부담을 질 수 있다는 점을 겨냥한다. 법률상 이익을 좁히면 가장 넓게 퍼진 피해일수록 누구도 다투지 못한다는 것이다. 이 반론이 지적하는 손실은 구체적이다. 평가대상 지역 경계선 바깥에 사는 주민도 같은 수인한도를 넘는 환경침해를 받으면서, 오히려 자료를 더 갖추어야 하는 역설이 생긴다. 그렇더라도 이 반론의 불리한 부분을 지울 수는 없다. 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 구역 밖 주민에 대해 입증을 요구하면서도, 동시에 침해를 입증하면 원고적격을 인정받을 수 있다고 열어 둔다. 이 답은 반론의 우려를 없애지 않으며, 다만 자동 부정이라는 더 가혹한 결론을 허용하지 않는다.
합성 장면에서 확인되는 사실은 A가 처분의 직접 상대방이 아니라는 점, A가 자기 생활상 이익의 침해를 주장한다는 점, 다투는 처분이 B의 처분이라는 점뿐이다. 장면에 평가대상 지역 안팎의 구분이 설정되지 않았고, 보호 법규·처분의 영향·신청자 지위·효과 소멸 뒤 회복할 이익의 기록도 수집되지 않았다. 그러므로 A가 평가대상 지역 안 주민인지, 아니면 구역 밖 주민으로서 수인한도 초과를 입증해야 하는지는 이 장면만으로 확정할 수 없다. 다만 장면 밖 연도·금액·기산일·판결 결과를 끌어와 채울 권한은 없다. 다만 이미 정해진 좁은 결론은 남는다. 피해와 법규의 보호 대상 사이 연결이 확인되지 않은 경우 그 사항은 불능으로 확정하지 않고 미확정으로 남긴다. 평가대상 지역 밖이라는 이유만으로 모든 주민의 적격을 자동 부정해서는 안 된다.
이 절이 허용하는 결론은 분명하다. 평가대상 지역 안 주민의 환경상 이익은 주민 개개인에게 개별적으로 보호되는 직접적·구체적 이익으로서 침해가 사실상 추정되고, 평가대상 지역 밖 주민은 침해 또는 침해우려를 입증하면 원고적격을 인정받을 수 있다. 여기서 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결은 대상 사업의 사실을 합성하지 않는다. 이 절이 허용하지 않는 결론도 분명하다. 평가대상 지역 밖이라는 이유만으로 모든 주민의 적격을 자동 부정하거나, 연결이 확인되지 않은 사항을 자격 불능으로 확정하거나, 미확정을 실제 지급·인도·회수의 실패로 바꾸어 서술하는 것은 이 밖의 일이다. 자료 부족은 미확정이며 곧바로 구제 불능이 아니다.
4.4The Records Needed for Determination
Up to the preceding stage, the boundary between individual, direct, and concrete interests and general, indirect, and abstract interests is carried over unchanged. On that boundary, do all persons who assert environmental harm bear the same burden? To answer this question, one takes up the scene in which resident A, who is not the direct counterpart of the disposition, seeks to challenge administrative agency B's disposition on the ground that his own interests in his daily life are infringed, and examines what materials must remain in the record for the determination of his standing.
Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment, speaks of residents inside and outside the area subject to assessment separately. As to residents inside the area, it stated that "the purpose is to protect even the individual interest of the residents within the area subject to environmental impact assessment in being able to live in a comfortable environment without suffering environmental infringement exceeding the tolerance threshold, in comparison with the past," and regarded that interest as "a direct and concrete interest protected individually with respect to each resident." This wording specifies together the subject to be protected, the impact of the protected conduct, and the scope of the interest in daily life that is the object of protection. The same passage presumes infringement as a matter of fact for residents inside the area, while laying down a different premise for residents outside the area.
The above wording held that, for residents inside the area, infringement is "presumed as a matter of fact," and legal interest in maintaining an action as plaintiff for confirmation of invalidity is recognized. By contrast, even for residents outside the area subject to environmental impact assessment, where they suffer, or are likely to suffer, environmental harm exceeding the tolerance threshold as compared with the period before the disposition, it was stated that "by proving that there is an infringement of, or a concern of infringement of, their environmental interests, they may obtain recognition of legal interest in maintaining an action as plaintiff for confirmation of the invalidity of such disposition." The two stages of determination must be read together in that they distinguish the materials on which a presumption operates from the materials that must be proved directly. The stage determination is made solely on the basis of the materials recorded concerning the protective statute, the impact of the disposition, the applicant's status, and the interest to be recovered after the effect expires, and does not fill an absent record with a presumption.
This point touches upon the apprehension that the more widely an environmental harm spreads, the more it may produce the result that no one can challenge it. If the record is read narrowly, the loss of residents whose sphere of life is broad appears to be erased before the threshold of the court. Even so, the standing of all residents cannot be automatically denied merely because they are outside the area subject to assessment. Since Supreme Court en banc Decision 2006Du330, decided March 16, 2006, left open to residents outside the area a path to have their standing recognized through proof, location itself cannot take the place of the record. Still, the burden borne by that resident in having to prepare more materials is not removed and remains as it is.
The facts confirmed in the scene are that A is not the direct counterpart of the disposition, and that he seeks to challenge B's disposition while asserting infringement of his own interests in his daily life. These facts alone cannot reveal in which area A is located, which protective statute takes his interests as the object of its protection, or whether the impact before and after the disposition remains in the record. Accordingly, A's standing is not determined at the present stage and remains undetermined. When the protective statute, the impact of the disposition, and the applicant's status are confirmed in the record, a determination becomes possible. Conversely, if the connection between the harm and the interests protected by the statute is not confirmed, the stage cannot be carried forward. This scene alone cannot decide the outcome.
The conclusion permitted by this section is a narrow one. It is that the stage can be determined only where a settled record exists, and standing cannot be fixed by conjecturally adding facts beyond that record. Conversely, the mere absence of a record cannot at once be turned into unavailability of relief. A state of insufficient materials is undetermined, and one must examine whether materials connecting a harm or a concern of harm to the interests protected by the protective statute accumulate.
4.5Circumstances That Change the Decision
It takes as its premise the boundary that divides individual, direct, and concrete interests from general, indirect, and abstract interests. The question remaining in this scene is whether residents inside and outside the sphere of influence all bear the same burden of proof. This structure means that even for persons challenging the same disposition, what must be shown differs according to the position in which one stands. This stage, leaving aside where that difference comes from, asks what change overturns a stage determination already made.
Summary of Decision [2] explains in two branches the purport of the relevant provisions of the former Public Waters Reclamation Act, the former Act on the Promotion of Rural Modernization, the former Environmental Conservation Act, the former Framework Act on Environmental Policy, and the respective Enforcement Decrees thereof, which form the basis of, or are related to, the disposition licensing the reclamation of public waters and the disposition approving the implementation of a farmland improvement project (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). First, residents within the area subject to environmental impact assessment are persons expected to suffer direct and serious environmental harm from the reclamation of public waters and the implementation of the farmland improvement project. The interest in life against which those residents measure is the individual interest in being able to live in a comfortable environment without suffering environmental infringement exceeding the tolerance threshold. This wording takes the individual resident as the subject to be protected, that individual interest as the object of protection, and places the purpose of protection against the background of the expectation of direct and serious harm.
The interest indicated by that wording is a direct and concrete interest protected individually with respect to each resident. As to this interest, the precedent holds that, absent special circumstances, an infringement or a concern of infringement is presumed as a matter of fact, and recognizes legal interest in maintaining an action as plaintiff for confirmation of invalidity (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). Here, presumption and recognition mean distinct stages of determination. While the presumption follows immediately without the fact of infringement being separately established, recognition is the procedure of confirming the legal qualification of legal interest in maintaining an action as plaintiff beneath that presumption. If the two are collapsed into a single stage, what a resident inside the area must show is erased, and in the end it appears as though every claimant must produce the same materials. The distinction between the sphere of influence and proof operates precisely at this point.
The precedent holds that even for a resident outside the area subject to environmental impact assessment, where, by reason of the disposition, that resident suffers or is likely to suffer environmental harm exceeding the tolerance threshold as compared with before the disposition, legal interest in maintaining an action as plaintiff may be recognized by proving an infringement of, or a concern of infringement of, environmental interests (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). This burden is not denied and remains as it is. Automatic denial would shut the door to proving infringement for that resident altogether, and the more widely an environmental harm spreads, the greater the void in which no one can challenge it.
In this scene, resident A is not the direct counterpart of the disposition, so standing is not conferred on him by that status alone. Yet whether the position in which A stands is inside or outside the area subject to assessment is not determined in the scene. If inside, the presumption of infringement follows absent special circumstances; if outside, A must prove infringement exceeding the tolerance threshold or a concern thereof. Since which of the two applies is not determined, the result of the stage determination cannot be fixed by this scene alone. If a legal interest remains that can be recovered even after the effect of the disposition ends, legal interest in maintaining an action (interest in filing action) is not denied by the mere lapse of time.
The conclusion permitted by this section is narrow. The interpretation that all persons asserting environmental harm bear the same burden, and the interpretation that standing automatically disappears merely by reason of being outside the area, do not follow from this wording. Conversely, it does not mean that the presumption for residents inside the area continues indefinitely or that no further materials need be shown. If the protective statute, the impact of the disposition, the applicant's status, and the interest to be recovered after the effect expires remain unconfirmed, that part is left undetermined; but undetermined does not mean unavailable relief.
4.6The Strongest Counterargument and the Answer
What differs according to whether one is inside or outside the area subject to assessment is not only the kind of interest but also the manner of showing it. When one maintains the boundary drawn by the precedent between individual, direct, and concrete interests and general, indirect, and abstract interests, the question presently aimed at concerns how large a share the residents outside the area bear at that boundary.
The precedent in question, speaking of the purport of the relevant provisions of the former Public Waters Reclamation Act (as in force before its amendment by Act No. 5337 of April 10, 1997) and the other relevant statutes, holds that even for residents outside the area subject to environmental impact assessment, where they suffer or are likely to suffer environmental harm exceeding the tolerance threshold as compared with before the disposition, they may obtain recognition of legal interest in maintaining an action as plaintiff for confirmation of the invalidity of that disposition by "proving" such infringement or concern of infringement (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). Here, the subject indicated by the wording is the resident outside the area subject to assessment; the act is the proof showing the infringement he suffers as a fact; and the condition is the judgment that harm exceeding the tolerance threshold, or a concern thereof, arises in the comparison before and after the disposition.
This wording carries the meaning that the circumstance of being outside the area itself does not extinguish standing but determines what is to be proved. For residents within the target area, infringement is "presumed as a matter of fact," and absent special circumstances standing is recognized; but for residents outside, since that presumption does not operate, they must prove directly that infringement exists. This difference is a difference as to what must be shown, prior to dividing the presence or absence of standing, and the conclusion of this section is that the standing of all residents cannot be automatically denied merely by reason of being outside the area subject to assessment. For this reason, one cannot place together the statement that something remains to be confirmed for the same result and the statement that there is no standing at all.
This does not lighten the position of residents outside the area. The criterion of harm exceeding the tolerance threshold is not satisfied by a mere probable concern, and one must clarify the degree compared with before the disposition; hence the more widely the harm spreads, the greater the risk that no one can challenge it. Reading the court's wording without erasing that loss reveals that the absence of a presumption is not a declaration of denial but a shift of the burden of proof. Both inside and outside the target area pass the same formal threshold, but residents outside must fill that place with materials.
In this synthetic scene, resident A is not the direct counterpart of the disposition and asserts infringement of his own interests in daily life, and it must also be presented what impact administrative agency B's disposition has on that life. Yet whether A falls within the target area, whether a degree exceeding the tolerance threshold is actually confirmed, and whether the relevant statute places that interest under individual protection are not determined. Taking the protective statute, the impact of the disposition, the applicant's status, and the interest to be recovered after the effect expires as items of the record, but since it cannot be asserted that any one of these items has been satisfied, the present determination of standing remains undetermined.
What this section permits is an attitude that does not wipe out the standing of individual residents in a batch merely by the designation of being outside the area; what it does not permit is the interpretation that standing is immediately declared. The greater burden spoken of by the counterargument remains undiminished; it is only that one who bears that burden with materials, once surpassing it, finds the path to standing opened.
4.7The Link to the Application and the Dispositive Part
The burden of proving environmental harm differs according to the criterion of being inside or outside the area subject to assessment. In the preceding section, it was held that the standing of all residents cannot be automatically denied merely by reason of being outside the area subject to assessment. This question concerns not the size of the harm but the difference in how the harm is shown.
The precedent in question clarifies the purport of the relevant provisions of the former Public Waters Reclamation Act (as in force before its amendment by Act No. 5337 of April 10, 1997), the former Act on the Promotion of Rural Modernization (as in force before its amendment by Act No. 4823 of December 22, 1994), the former Environmental Conservation Act (repealed by Act No. 4257 of August 1, 1990), the former Enforcement Decree of the Environmental Conservation Act (repealed by Presidential Decree No. 13303 of February 2, 1991), the former Framework Act on Environmental Policy (as in force before its amendment by Act No. 4567 of June 11, 1993), and the former Enforcement Decree of the Framework Act on Environmental Policy (as in force before its amendment by Presidential Decree No. 13715 of August 22, 1992) (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). Its wording regards the purpose as protecting even the individual interest of the residents within the area subject to environmental impact assessment, who are expected to suffer environmental harm, in being able to live in a comfortable environment without suffering environmental infringement exceeding the tolerance threshold (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). In terms of the wording, the subjects of protection are divided into residents inside and outside the area subject to environmental impact assessment; the act is the comparison of the level of environmental infringement before and after the disposition; and the condition is the occurrence of, or concern about, harm exceeding the tolerance threshold (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment).
What connects this wording with the conclusion of this section is that the type of the object of protection and the position of proof move together. The precedent regards the environmental interest of residents within the target area as a direct and concrete interest protected individually with respect to each resident, and explains that, absent special circumstances, an infringement or a concern of infringement is presumed as a matter of fact (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). For residents outside the target area, where they suffer or are likely to suffer environmental harm exceeding the tolerance threshold, legal interest in maintaining an action as plaintiff may be recognized by proving an infringement or a concern of infringement (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). Accordingly, the judgment divides into two stages. First, after the requirement of environmental infringement exceeding the tolerance threshold as compared with before the disposition is met, what differs is whether that fact is left to the presumption or shown directly through materials of assertion.
The counterargument that an actual victim outside the area may bear a greater burden of proof turns its eyes to losses in reality. The more widely harm spreads, the more residents who find it difficult to gather materials stop before the doors of the lawsuit, and the greatest harm may instead bring the result that no one can challenge it. Yet the reason the conclusion can be maintained without erasing that disadvantage is that the standing of all residents cannot be automatically denied merely by reason of being outside the area subject to assessment. The precedent leaves the open passage of proving infringement even to residents outside the area, and the determination is made at the stage of confirming whether a legally protected interest remains, by setting the purport of the protective statute and the impact of the disposition against each other.
In the synthetic scene, A, while not being the direct counterpart of the disposition, asserts infringement of his own interests in daily life and seeks to challenge B's disposition. Whether A is inside or outside the area subject to environmental impact assessment, whether he suffers environmental harm exceeding the tolerance threshold before and after the disposition, and with what materials that fact can be shown are not determined. According to the wording of Summary of Decision [2], if inside, he enjoys the benefit of the presumption, and if outside, he must prove an infringement or a concern of infringement (Supreme Court Decision 2006Du330 decided March 16, 2006, en banc judgment). Yet since A's status and the impact of the disposition are not confirmed on the record, the standing determination stops at applying this structure of distinction, and the facts of an actual case are not judged.
The conclusion permitted by this section is not that all persons asserting environmental harm bear the same burden; the precedent's distinction takes as its criterion, not the size of the harm, but the sphere of influence fixed by law and the position of the materials of assertion. The conclusions not permitted are to automatically deny the standing of all residents merely by reason of being outside the area subject to assessment, and to judge by adding the facts of the target project to the scene. Even if unconfirmed items remain, the already settled narrow judgment—that the path of proof is open to residents outside the area as well—is maintained.
4.8The Scope This Section Undertakes
The preceding section adopted the structure for determining infringement of interests according to whether an area lies inside or outside the area subject to evaluation under the relevant precedent, on the premise that no facts about the project in question were synthesized. The question of this section is what changes depending on whether one falls inside or outside the scope of evaluation prescribed by law.
Supreme Court en banc judgment 2006Du330 decided March 16, 2006 states as follows regarding the purpose of the relevant provisions. "It is meant to protect even the individual interest of the residents within the area subject to environmental impact assessment, who are expected to suffer direct and serious environmental damage due to the reclamation of public waters and the implementation of a farmland improvement project, to live in a pleasant environment without suffering environmental infringement exceeding the tolerable limit compared to before" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). This language identifies the subject to be protected as the residents within the area subject to evaluation, and the interest protected as the individual interest in living in a pleasant environment.
The phrases preceding and following the same holding distinguish two stages of criteria. First, "the environmental interests described above held by the above residents are direct and concrete interests individually protected with respect to each resident" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006), and infringement or the risk of infringement is presumed as a matter of fact. Next, as to residents outside the area subject to environmental impact assessment, a condition is attached in the form of "where, compared to before the disposition, they suffer environmental damage exceeding the tolerable limit or are at risk of suffering it" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006), and it is stated that they may be recognized as having standing as plaintiff where they prove infringement or the risk of infringement. The reason the premise adopted in the preceding section requires maintaining the boundary between individual, direct, and concrete interests on the one hand and general, indirect, and abstract interests on the other lies precisely in this distinction.
Residents living outside the sphere of influence established by law must gather the evidence themselves to show environmental damage exceeding the tolerable limit, and therefore lose the benefit of the factual presumption enjoyed by residents within the area subject to evaluation. It cannot be denied that even where they feel they have suffered the same harm, the effort devoted to preparing the litigation may differ. Even so, the precedent makes clear that the eligibility of all residents cannot be automatically denied merely because they are outside the area subject to evaluation. The mere fact of being outside does not bar qualification, and if the problem is the burden shifted toward proof, the solution lies in relieving that burden, not in a wholesale denial of qualification.
Returning to the synthetic scene, since resident A is not the direct counterparty to the disposition, A can proceed only by asserting that A's own interests in daily life have been infringed. At that point it has not been set whether A is a resident living inside or outside the statutory scope of evaluation. If A falls within the area, individual, direct, and concrete interests are recognized and infringement is presumed as a matter of fact; if A falls outside the area, A must prove damage exceeding the tolerable limit. Which of these two paths applies can be determined only when the data is confirmed. Records such as the protective statute, the effect of the disposition, the applicant's status, and the interest to be recovered after the effect expires are needed for the determination. If the facts necessary for adjudication are not visible, the matter is left undetermined.
The conclusion this section permits is narrow: that being inside or outside the area subject to evaluation merely divides the threshold of proof, and that qualification must not be automatically denied merely on the ground of being outside the area. The reason the terms sphere of influence and proof point to the structure for judging qualification based on the statutory scope of evaluation and the evidence of damage is to preserve this structure of adjudication, not to ascertain what damage actually occurred in some project. How do the words of Supreme Court en banc judgment 2006Du330 decided March 16, 2006 support this conclusion?
4.9Application of the Text of the Provisions and the Holdings of Precedents
With the boundary as to whether all who claim environmental harm bear the same burden maintained, the analysis now examines how that boundary operates as the basis for judging the qualification to demand administrative relief as plaintiff. Sphere of influence and proof mean the structure for judging qualification based on the statutory scope of evaluation and the evidence of damage, and this structure serves as the standard for reading A's circumstances. Without repeating the relational distinctions left by the preceding stage, the analysis confirms only what limitation the relevant language places on the judgment of qualification.
The relevant language places two cases side by side. Summary of Decision [2] of Supreme Court en banc judgment 2006Du330 decided March 16, 2006 explains that, in accordance with the purpose of the relevant provisions, "the residents within the area subject to environmental impact assessment, who are expected to suffer direct and serious environmental damage" hold "the individual interest in living in a pleasant environment without suffering environmental infringement exceeding the tolerable limit compared to before," and that this interest is a "direct and concrete interest individually protected with respect to each resident" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). Here the subject is the residents within the area subject to evaluation, the act is seeking confirmation of the invalidity of disposition such as a license for the reclamation of public waters, and the condition is the case where infringement or the risk of infringement is presumed as a matter of fact.
The same language imposes a different condition on residents outside the area subject to evaluation. "Even if they are residents outside the area subject to environmental impact assessment," where by reason of the disposition "they suffer environmental damage exceeding the tolerable limit compared to before the disposition or are at risk of suffering it," they may be recognized as having standing as plaintiff "by proving that there is an infringement of, or risk of infringement to, their environmental interests" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). Both cases enter into the same judgment of qualification, yet they are distinguished in that, inside the area, a presumption is added, whereas outside the area, the matter is opened by proof. This distinction is not one of granting or withholding qualification, but a difference in what material fills the basis for recognizing qualification. Even where the same concern about pollution is asserted, the required material varies according to the position fixed by the language, so that merging the two stages would erase the limitation the language creates.
The language acknowledged that burden without closing the door to qualification, and did not shift the answer toward the denying side. This answer, without erasing the disadvantage of the burden of proof, prevents A's claim from being rejected unheard on the sole ground of being outside the area. In the author's application, the judgment of qualification proceeds on the premise of the boundary between individual, direct, and concrete interests on the one hand and general, indirect, and abstract interests on the other, and the language differentiates only the evidentiary demands for inside and outside the area above that boundary. If the outside set by the language is widened, or if the matter is expanded through the reasons for the decision, this limitation is lost.
Returning to the synthetic scene, only two points are settled: that A is not the direct counterparty to the disposition, and that A asserts the infringement of A's own interests in daily life. Placing the distinction drawn by the language here, the required material differs depending on whether A is inside or outside the area subject to environmental impact assessment. If inside the area, infringement or the risk of infringement is presumed as a matter of fact, and the material demanded by the language is reduced; if outside the area, A must prove damage exceeding the tolerable limit compared to before the disposition, or the risk thereof. However, the scene has not fixed A's location, the content of the disposition, the protective statute, the effect of the disposition, the applicant's status, or the interest to be recovered after the effect expires, and therefore what among these has been confirmed remains undetermined. Accordingly, on the basis of this scene alone, it cannot be said either that A's qualification is recognized or that it is denied. Only the structure of judgment is confirmed, and the outcome diverges according to the direction in which the material is supplied.
What this section permits is to adopt the demands for material for inside and outside the area set by the relevant language as the basis for adjudging the qualification to demand administrative relief as plaintiff, and not to deny qualification automatically on the sole ground of being outside the area. What is not permitted is to broaden the judgment through reasons for the decision outside the language or through other paragraphs, or to fill in unverified material and pronounce upon A's qualification. Where there exists a legally protected interest recoverable through revocation of disposition or confirmation, and requirements such as filing per action type are also met, the door to the judgment of qualification opens; where there is only a general and indirect interest in the public good and no individually protected legal interest is recognized, it closes; and where no connection between the harm and the object of the statute's protection is confirmed, the matter remains undetermined.
4.10Fine Distinctions Within the Stage
On the premise of maintaining the boundary between individual, direct, and concrete interests and general, indirect, and abstract interests as distinguished by the precedent, the present question is what portion within the qualification to demand administrative relief as plaintiff must actually be subdivided and adjudged. The preceding section confirmed only that the burden is not the same for every person claiming environmental harm, and it is here that the conditions under which that distinction operates are examined.
Supreme Court en banc judgment 2006Du330 decided March 16, 2006 explains the residents inside and outside the area subject to evaluation separately in Summary of Decision [2]. After finding that the purpose of the relevant provisions cited lies in protecting even the individual interest of the residents within the area subject to environmental impact assessment in living in a pleasant environment, it designates those residents' environmental interests as "direct and concrete interests individually protected with respect to each resident." This language defines together the character of the interest protected and the subject holding that interest. By contrast, as to residents outside the area subject to evaluation, a condition such as "where they suffer environmental damage exceeding the tolerable limit or are at risk of suffering it" is attached, and proof of the fact of infringement is required.
The way this basis leads to a fixed conclusion lies not in a listing of conditions but in a distinction within a single stage. As to residents inside the area, infringement is presumed as a matter of fact and the adjudication opens readily; as to residents outside the area, proof is separately required and the adjudication opens later. This difference is not a stage that permanently separates those with qualification from those without it, but a distinction within the same judgment of qualification that determines what records are required. No new stage may be created here.
Residents outside the zone are placed in an uncomfortable position first of all. Even where they undergo the same harm, they must directly explain the infringement of their own interests and support it with material, so the criticism may be made that the more widely the harm spreads, the harder it becomes to contest. The author does not erase the point that this burden actually exists. But that burden does not extend to automatic denial. So long as the answer holds that the eligibility of all residents cannot be automatically denied merely because they are outside the area subject to evaluation, the division of areas operates only as a difference in the demand for proof and does not predetermine the outcome.
In the synthetic scene, A is not the direct counterparty to the disposition and asserts the infringement of A's own interests in daily life. On these facts alone it has not been determined whether A's sphere of influence lies inside or outside the area subject to evaluation, and it is also undetermined with what material A seeks to show the infringement. Accordingly, depending on what among the record items—the protective statute, the effect of the disposition, the applicant's status, and the interest to be recovered after the effect expires—has been supplied, it is merely determined which of the operative, the blocked, and the undetermined cases A falls into. The scene provides only the conditions of adjudication and does not decide victory or defeat or the success of recovery.
The conclusion this section permits is that the detailed distinctions within qualification are bound to the conditions expressly stated, and what it does not permit is inflating those distinctions into a new stage or denying qualification wholesale on the basis of the area distinction alone. Insofar as sphere of influence and proof mean the structure for judging qualification based on the statutory scope of evaluation and the evidence of damage, on which side A falls remains a matter to be determined by the remaining records.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
What remains at issue in this scene is whether A acquires or is barred from the qualification of plaintiff, or whether judgment must be deferred on the records alone. Even if the preceding distinction as to whether all who claim environmental harm bear the same burden is accepted, the present examination concerns how, for a person such as A who is not a party to the disposition, the effect, the blockage, and the undetermined status of the qualification to demand administrative relief are divided. Under this structure, even for the same concern about pollution, some have their qualification opened, some are barred, and some are shown to require further confirmation.
The language underlying this distinction is the structure of judgment presented by Supreme Court en banc judgment 2006Du330 decided March 16, 2006. That precedent makes clear that the purpose of the relevant statutes lies in the fact that "the residents within the area subject to environmental impact assessment, who are expected to suffer direct and serious environmental damage due to the reclamation of public waters and the implementation of a farmland improvement project, are to have their individual interest protected in living in a pleasant environment without suffering environmental infringement exceeding the tolerable limit compared to before" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). The subject indicated by this language is the residents within the area subject to environmental impact assessment, and the conduct to be protected is the living of life without suffering environmental infringement exceeding the tolerable limit. The condition is being in a position expected to suffer direct and serious environmental damage, and as a result the environmental interests they hold are placed as "direct and concrete interests individually protected with respect to each resident" (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). This passage addresses only the subject, conduct, and condition set by this language, and does not address other issues arising under the relevant provision.
The point where this language and the conclusion of this section meet is that the character of the interest divides the judgment of qualification. The precedent holds that, since the interests of residents within the area subject to evaluation are direct and concrete interests individually protected, "unless there are special circumstances, infringement of, or risk of infringement to, their environmental interests is presumed as a matter of fact" and qualification is recognized (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). By contrast, if the interests rise no higher than general, indirect, and abstract interests, no individually protected legal interest is recognized and qualification is barred. The reason the two judgments must be divided is that, in the former case, infringement is presumed and the door opens, whereas in the latter case there is no recognition of individual protection at all and the door is barred. Only where requirements such as filing per action type are also met does qualification open, and these requirements are placed as a stage separate from the character of the interest. Where no connection between the harm and the object of the statute's protection is confirmed, the matter remains undetermined, neither open nor barred.
The loss aimed at by this narrow distinction is clear. If legal interests are construed narrowly, the result may be that the more widely the harm spreads, the less able anyone is to contest it. The disadvantageous part lies precisely in that residents outside the area subject to evaluation who actually suffer harm may bear a greater burden of proof than residents within it. The precedent does not erase this part either, and holds that even residents outside the area subject to evaluation may be recognized as having qualification by proving infringement or the risk of infringement where, compared to before the disposition, they suffer environmental damage exceeding the tolerable limit or are at risk of suffering it (Supreme Court en banc judgment 2006Du330 decided March 16, 2006). This answer recognizes the disadvantage that residents outside the zone must prepare weightier material, yet does not permit making that position itself a ground for automatic exclusion from qualification.
Viewed in light of this scene, resident A is a person who, while not the direct counterparty to the disposition, asserts the infringement of A's own interests in daily life. On these facts alone it has not been determined whether A is inside or outside the area subject to evaluation, and no material has been gathered as to whether A suffers environmental damage exceeding the tolerable limit. The protective statute, the effect of the disposition, the applicant's status, and the interest to be recovered after the effect expires are the records used in the judgment. In this case, A's qualification is placed in an undetermined state, in which the connection between the harm and the object of the statute's protection is not confirmed. By contrast, if it is confirmed that A is a resident within the area subject to evaluation and there are no special circumstances, the matter draws closer to the side that opens, with infringement presumed as a matter of fact, and if infringement is also proven by material, the same conclusion may be reached even outside the zone. However, since the facts, service, and performance results of the actual case have not been confirmed, A's final qualification cannot be determined on the basis of this scene alone.
What this section permits is to divide qualification into open, barred, and undetermined and judge accordingly; what it does not permit is to deny qualification automatically on the position of being outside the zone alone. In addition, where a legally protected interest recoverable even after the effect of the disposition has ended remains, legal interest in maintaining an action (interest in filing action) is not denied by the mere lapse of time, and this remains as a separate stage of judgment.
4.12Conclusion Carried Over to the Next Section
Even when the same concern about pollution is asserted, the court's threshold varies according to the zone of influence fixed by the law and the materials submitted; this is what has been confirmed through the preceding stage. In this scene, what must be asked is what burden A bears, and why that burden differs according to the position occupied within the zone of influence defined by law. Even when the same environmental concern is expressed, one must examine the structure by which what is demanded differs depending on which side one stands on.
This provision identifies, as the subject of protection, the residents within the area subject to environmental impact assessment, and describes their interest as an individual interest in living in a pleasant environment. Accordingly, this phrase takes as its premise that the environmental interests of these residents are direct and concrete interests protected individually with respect to each resident.
The link connecting this provision with the conclusion of this section concerns the de facto presumption of infringement. Precedent holds that, as to residents within the area concerned, "unless there are special circumstances, infringement of, or a concern of infringement of, their environmental interest is presumed as a matter of fact," and that accordingly their standing as plaintiffs to seek a confirmation of nullity is recognized. By contrast, residents outside the area concerned must prove infringement or a concern of infringement in order to obtain the same standing. The reason these two stages of presumption and proof must be distinguished is that, even for the same kind of environmental interest, the amount of material required by law differs depending on the area in which one resides. This distinction does not create a new requirement; it is the work of maintaining the line precedent has already drawn.
The counterargument most forcefully raised against this distinction is the point that actual victims outside the area may bear a heavier burden of proof. The residents who actually suffer harm beyond the limits of toleration are not few simply because they live outside the area subject to assessment; rather, the further outside the boundary marked by the law they are, the greater the difficulty, since they must describe their own harm with materials. The worry that narrowing the legal interest may leave the most widely diffused harms in a state where no one can contest them belongs to the same context. Precedent has left open, even for residents outside the area, a path to recognition of their standing as plaintiffs, namely by proving infringement or a concern of infringement where they have suffered, or are likely to suffer, environmental harm beyond the limits of toleration.
In the synthetic scene, resident A is not the direct counterpart of the disposition and asserts that his or her interest in daily life has been infringed. However, whether A lives inside or outside the area subject to environmental impact assessment, and whether A possesses materials documenting harm beyond the limits of toleration, has not been confirmed. Reading only the Holdings and Summary of Decision [2] of the precedent, one cannot draw in the facts of the project concerned. Accordingly, A's standing falls on the side of presumption if A belongs to the area concerned, and on the side of proof if A belongs outside it; as there are no materials showing which is the case, the matter remains undetermined. Since the reasons for the judgment and the detailed facts have not been read, all that can be fixed from this scene alone is the conditional distinction.
The conclusion this section permits is that not all persons asserting environmental harm bear the same burden. Residents within the area of assessment defined by law stand on the side where infringement is presumed as a matter of fact, while residents outside the area stand on the side where infringement or a concern of infringement must be proved. What this section does not permit is the categorical assertion that standing is automatically absent merely because of the geographical fact of being outside the area, and the exaggeration that no evidentiary material of any kind is needed merely because one is inside the area. Guarding the boundary between these two stages of judgment is the task of this section; the question of an interest capable of being restored has not yet been addressed.