S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law Journal of Korean Law Volume 07 Number 1/2 (2007)
Against the Viability of Private Enforcement: Focusing on Korean Environmental Law
- Cho, Hong Sik
- Issue Date
- BK 21 law
- Journal of Korean Law, Vol.7 No.1, pp. 81-108
- environmental law; under-enforcement; private enforcement; public enforcement; subjective rule; objective rule; public law; paternalism; democratic legitimacy; funding ratio; private subsidy; citizen suit; Private Attorney General; actio popularis; concerned citizen suit; pragmatic balancing; judicial power; democratic government
- This essay concerns whether, how much, and under what condition private enforcement can solve the problem caused by under-enforcement of environmental law. Although the policy debate yields no universal conclusion, this essay concludes that the viability of private enforcement depends upon how well its specific design fits the relevant context.
With respect to the design of private enforcement, the following points should be noted. First, the essential question is whether and to what extent private individuals can be allowed to use the judiciary to compel far-reaching changes in society, especially where such changes are directed not at individuals’ rights but at the public’s common interest. Therefore, the question concerns a variety of complicated issues such as the proper role of courts in democratic government, the proper relationship between individuals and the community, and so on. Decisions regarding such issues must derive, at least in part, from a society’s common set of ideological or other commitments. This essay argues that the existing enforcement scheme may properly reflect our society’s common idea about such issues.
Second, since the cost of private enforcement is higher than it looks, the decision of whether to adopt private enforcement in a particular context requires a pragmatic balancing that is best undertaken not by courts, but by legislatures responsible for the underlying law being enforced. Having said that, this essay claims that the first step to remedy the under-enforcement problem must be to overhaul and realign the existing enforcement scheme. If this step is not sufficient, then let concerned citizens sue the government (not polluters directly) to correct government wrongful actions and inactions. Only concerned citizens in the context of neighborhood claims can detect legal wrongs easily and cheaply with relatively less cost on the existing enforcement scheme. If the “Private Attorney
General (PAG)” type of private enforcement is chosen, then the government should retain the power to structure private settlement and rewards. Given the current circumstances, this essay concludes that there is little likelihood and less need for the Korean government to adopt the PAG type of private enforcement.
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