環境紛爭調整法에 따른 분쟁해결과 ADR의 일반이론(Ⅱ)
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작성자 관리자 작성일09-06-10 00:00 조회58회 댓글0건관련링크
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A Discussion of the Dispute Resolution Mechanism Based on the Environmental Dispute Adjustment Act in Regards to the General Principles of ADR
Si Cheol Kim
The Environmental Dispute Adjustment System (“EDAS”) stipulated in the Environmental Dispute Adjustment Act (“EDAA”) is a form of Alternative Dispute Resolution (“ADR”) handled by a division of the Administrative Branch. This particular dispute resolution mechanism followed in the EDAS, consists of several controversial aspects, when viewed in the light of various general principles that lies in the core of ADR.
Though the main purpose of EDAS, which models after the Japanese Adjustment System for Grievances from Pollution, is to settle civil disputes arising in the environmental areas, when compared, the vast majority of EDAS cases in Korea relate to adjudicatory awards while mediation cases constitute overwhelming dispute resolutions in Japan. This, therefore, has drawn criticism concerning the Korean practice of dispute resolution in the environmental dispute setting, since it runs contrary to the very nature of ADR.
Furthermore, in consideration of the general principles of ADR, the provisions of EDAA consist of various fundamental defects. In fact, due to the tendency of ‘under-litigation’ involving environmental disputes, to some extent, this requires a specific mechanism for resolution of such disputes. Under the current system of EDAS, however, the State provides public subsidy to litigants as a matter of fact, which may result in ‘over-litigation’ of disputed cases and actually create a converse effect. Though it may be inevitable to sustain the current system for the time being, for the future, the EDAS should be framed in order to minimize the total cost of resolving disputes. Since the total cost consists of both an ‘operation cost’ and an ‘error cost,’ to reduce the former cost, the latter cost is considered as a necessary trade-off. The EDAS, therefore, must be constructed in a way to minimize the sum of both costs accordingly.
Until recently, the successful outcome of a mediation or an adjudicatory award within the EDAS has been considered as a formal consent agreement between the parties concerned, which is greatly similar to that of Japan. Nevertheless, because of the newly enacted statute, EDAA(amended by Act No. 8955 on Mar. 21, 2008, and effective on Sep. 22. 2008), the final outcome of EDAS now has the same effect as a consent judgment of a court.
This raises doubts on whether the amendment of the statute can even be upheld as legitimate at all. Under the current Civil Procedure Act in Korea, consent judgments not only have the effect of an execution(enforcement power) but also the effect of a claim preclusion(res judicata). When compared, the Korean consent judgment system is somewhat different from the German system, which only has the effect of execution(enforcement power) but not of claim preclusion.
The constitutionality of the statute must also be strictly scrutinized since outcomes of the ADR conducted by the Administrative Branch have the similar effect of a consent judgment. Even from the standpoint of democratic legitimacy, the Korean EDAS is relatively inferior to the Japanese system. Thus, it seems unreasonable to produce the outcomes of EDAS have the similar effect of a consent judgment. Furthermore, in light of the precedents of the Korean Constitutional Court, controversy surrounding the constitutionality of the provisions on the effect of EDAS or Ex Officio Mediation system still remains as an important issue to be considered.
The very nature of the ADR must be emphasized that respects the parties’ autonomy involving each dispute, in order to establish a dispute resolution system that is based on sound ADR principles. From another standpoint, the success of EDAS system depends on the extent of reducing the error costs associated with the disputes resolutions. Therefore, in addition to reviewing the empirical research conducted in the U.S. or Japan for guidance in improving the current EDAS system, attempts to narrow the gap between the decisions of the court and the outcomes of the EDAS regarding the environmental disputes must strongly be pursued.
Key Words Environmental Dispute Adjustment Act, Environmental Dispute Adjustment System, Alternative Dispute Resolution(ADR), general principle of ADR, under-litigation, over-litigation, operation cost, error cost, consent judgment, the effect of execution, the effect of claim preclusion(res judicata), Ex Officio Mediation system, parties’ autonomy
Si Cheol Kim
The Environmental Dispute Adjustment System (“EDAS”) stipulated in the Environmental Dispute Adjustment Act (“EDAA”) is a form of Alternative Dispute Resolution (“ADR”) handled by a division of the Administrative Branch. This particular dispute resolution mechanism followed in the EDAS, consists of several controversial aspects, when viewed in the light of various general principles that lies in the core of ADR.
Though the main purpose of EDAS, which models after the Japanese Adjustment System for Grievances from Pollution, is to settle civil disputes arising in the environmental areas, when compared, the vast majority of EDAS cases in Korea relate to adjudicatory awards while mediation cases constitute overwhelming dispute resolutions in Japan. This, therefore, has drawn criticism concerning the Korean practice of dispute resolution in the environmental dispute setting, since it runs contrary to the very nature of ADR.
Furthermore, in consideration of the general principles of ADR, the provisions of EDAA consist of various fundamental defects. In fact, due to the tendency of ‘under-litigation’ involving environmental disputes, to some extent, this requires a specific mechanism for resolution of such disputes. Under the current system of EDAS, however, the State provides public subsidy to litigants as a matter of fact, which may result in ‘over-litigation’ of disputed cases and actually create a converse effect. Though it may be inevitable to sustain the current system for the time being, for the future, the EDAS should be framed in order to minimize the total cost of resolving disputes. Since the total cost consists of both an ‘operation cost’ and an ‘error cost,’ to reduce the former cost, the latter cost is considered as a necessary trade-off. The EDAS, therefore, must be constructed in a way to minimize the sum of both costs accordingly.
Until recently, the successful outcome of a mediation or an adjudicatory award within the EDAS has been considered as a formal consent agreement between the parties concerned, which is greatly similar to that of Japan. Nevertheless, because of the newly enacted statute, EDAA(amended by Act No. 8955 on Mar. 21, 2008, and effective on Sep. 22. 2008), the final outcome of EDAS now has the same effect as a consent judgment of a court.
This raises doubts on whether the amendment of the statute can even be upheld as legitimate at all. Under the current Civil Procedure Act in Korea, consent judgments not only have the effect of an execution(enforcement power) but also the effect of a claim preclusion(res judicata). When compared, the Korean consent judgment system is somewhat different from the German system, which only has the effect of execution(enforcement power) but not of claim preclusion.
The constitutionality of the statute must also be strictly scrutinized since outcomes of the ADR conducted by the Administrative Branch have the similar effect of a consent judgment. Even from the standpoint of democratic legitimacy, the Korean EDAS is relatively inferior to the Japanese system. Thus, it seems unreasonable to produce the outcomes of EDAS have the similar effect of a consent judgment. Furthermore, in light of the precedents of the Korean Constitutional Court, controversy surrounding the constitutionality of the provisions on the effect of EDAS or Ex Officio Mediation system still remains as an important issue to be considered.
The very nature of the ADR must be emphasized that respects the parties’ autonomy involving each dispute, in order to establish a dispute resolution system that is based on sound ADR principles. From another standpoint, the success of EDAS system depends on the extent of reducing the error costs associated with the disputes resolutions. Therefore, in addition to reviewing the empirical research conducted in the U.S. or Japan for guidance in improving the current EDAS system, attempts to narrow the gap between the decisions of the court and the outcomes of the EDAS regarding the environmental disputes must strongly be pursued.
Key Words Environmental Dispute Adjustment Act, Environmental Dispute Adjustment System, Alternative Dispute Resolution(ADR), general principle of ADR, under-litigation, over-litigation, operation cost, error cost, consent judgment, the effect of execution, the effect of claim preclusion(res judicata), Ex Officio Mediation system, parties’ autonomy
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