헌법상 환경권규정의 의미와 효과에 관한 소고
분야
사회과학 > 법학
저자
석인선 ( In Sun Seok )
발행기관
이화여자대학교 법학연구소
간행물정보
법학논집 2003년, 제7권 제2호, 1~23페이지(총23페이지)
파일형식
2b600354.pdf [무료 PDF 뷰어 다운로드]
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    The major purposes of this article are to explore the developmental process of the constitutional provision of environmental right and to intensify its meaning and effectiveness and to review the effects of the establishment of environmental right upon the current legal system. In short, the purpose of this study is to strengthen the legal and constitutional meaning of environmental right as being already approved a fundamental right. Chapter I points out that although the idea of environmental right is not the product of systematical consideration by the legal scholar, it becomes to be one of the best concept to solve the massive and serious environmental problems from the legal viewpoint. To overcome the limit of a private legal approach to solve the environment in the constitution. The current Korean Constitution has incorporated environmental right in article 35, which reads “all citizens shall be entitled to live in a healthy and decent environment. The state and all citizens shall have the duty to protect the environment”. Chapter 2 compares and considers how the legal doctrine of environmental right as based on the constitution of each nation is formed, and is operated through the provisions and cases concerning environmental pollution. Chapter 3 examines the concept of environment in relation to incorporation of environmental right into the constitution. In addition, it explores the category of the environment as an object of environmental right and the subject enjoying environmental right in the constitution. Chapter 4 analyzes the legal character of environmental right. Efforts to establish environmental right under the current legal system must face a strong resistance and criticism based on the conventional legal principles. There are such other factors as a lack of environmental legislations and a lack of environmental perception of the people. I pay particular attention to the social right character of the environmental right. Chapter V suggests the effectiveness of environmental right in the current legal system Legal approval of environmental right into the current legal system vests gross effects upon the areas of public and private laws in connection with the government``s attitude toward environmental control legislations and policies. Finally, it is emphasized that the concept of environmental right clears the character of individual right to enjoy a decent environment, which requires remarkable changes in operating administrative proceedings system and advancing positively for judicial remedy in the area of environment.
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