허성욱, 환경법에서의 공법과 사법, 2017.04, 환경법 연구
【Abstract】
Public Law and Private Law in Environmental Law – Focused on the Issue of Private Effectiveness of Public Standards –
Heo, Seongwook (Professor of Law Seoul National University Law School)
In Korean jurisprudence, public law and private law have been traditionally treated as different from each other. However, as legal issues get more and more complicated and connected with each other in modern society, the relationship between public law and private law needs to be studied from different perspectives. Environmental law is one of the major fields in which this kind of new approach is required. In this paper, firstly, I reviewed the ongoing discussions on the issue of private effectiveness of public standards in court cases. After that, I tried to restructure the basic function of environmental law as the accomplishment of efficiency in resource allocation by internalizing externality. The role of private law in tort is attaining the maximum efficiency in resource allocation by optimizing individuals’ choices by affecting their incentive mechanism. In this understanding, the role of illegality criterion in tort law is calibration of people’s behavior in probabilistic accident situations. On the other hand, the role of public law or government regulation is to achieve the maximum efficiency in resource allocation by making out the optimum public standards through the political and administrative process. If we can assume that the political and administrative process is perfectly working in collecting the individuals’ preferences into social preference, then the public standards as the outcome of such social preference function will be optimizing individuals’ choices into efficient allocation of resources. According to the different understandings of political procedures like public interest theory and public choice theory, the public standards as the outcome of political procedures will be explained differently. Furthermore, according to the factors of success and failure of the political procedures, the reason why the public standards and the private illegality criterion can go together in some situations and can go differently in other situations.
주제어 환경기준, 자원배분의 효율성, 불법행위법, 행정규제, 공법과 사법
Key Words environmental standard, resource allocation, tort law, government regulation, public law and private law
허성욱, 환경법에서의 공법과 사법, 2017.04, 환경법 연구
【Abstract】
Public Law and Private Law in Environmental Law – Focused on the Issue of Private Effectiveness of Public Standards –
Heo, Seongwook (Professor of Law Seoul National University Law School)
In Korean jurisprudence, public law and private law have been traditionally treated as different from each other. However, as legal issues get more and more complicated and connected with each other in modern society, the relationship between public law and private law needs to be studied from different perspectives. Environmental law is one of the major fields in which this kind of new approach is required. In this paper, firstly, I reviewed the ongoing discussions on the issue of private effectiveness of public standards in court cases. After that, I tried to restructure the basic function of environmental law as the accomplishment of efficiency in resource allocation by internalizing externality. The role of private law in tort is attaining the maximum efficiency in resource allocation by optimizing individuals’ choices by affecting their incentive mechanism. In this understanding, the role of illegality criterion in tort law is calibration of people’s behavior in probabilistic accident situations. On the other hand, the role of public law or government regulation is to achieve the maximum efficiency in resource allocation by making out the optimum public standards through the political and administrative process. If we can assume that the political and administrative process is perfectly working in collecting the individuals’ preferences into social preference, then the public standards as the outcome of such social preference function will be optimizing individuals’ choices into efficient allocation of resources. According to the different understandings of political procedures like public interest theory and public choice theory, the public standards as the outcome of political procedures will be explained differently. Furthermore, according to the factors of success and failure of the political procedures, the reason why the public standards and the private illegality criterion can go together in some situations and can go differently in other situations.
주제어 환경기준, 자원배분의 효율성, 불법행위법, 행정규제, 공법과 사법
Key Words environmental standard, resource allocation, tort law, government regulation, public law and private law