Original language


Republic of Korea
Date of text
Type of court
National - higher court
Court name
Constitutional Court of Korea
Reference number
2010 HUHNBA167
Liability, Property, Constitutional
Free tags
Legal questions
Land & soil
Waste & hazardous substances

The Soil Environment Conservation Act imposes strict liability on a person causing soil contamination. In particular, a person who satisfies any of the following categories is regarded as a Polluter for Act purposes: (i) persons who own, occupy or operate certain facilities subject to the control of specific soil contamination (“Controlled Facilities”) which have been a cause for soil contamination at the time of occurrence of soil contamination or (ii) persons who have taken over the Controlled Facilities (Article 10-3 (3) of the old Soil Environment Conservation Act1, the “Polluter Clause”. A tenant of the claimant’s land manages a gas station on land leased by the claimant on October 16, 2004. The level of contamination of the land exceeded the threshold of determining existence of soil contamination set forth in the Act in July 2005, due to problems with the underground pipes connected to the oil storage tank. Consequently, the mayor of Masan ordered the claimant to clean up the site on May 21, 2008 pursuant to Article 10-3(3)2of the Act. The claimant filed a constitutional appeal, arguing that the contested provision of the Polluter Clause defines an owner of Controlled Facilities, who is unrelated to the soil contamination, as the Polluter for soil contamination without giving such person an opportunity to avoid liability by showing good faith or no fault, while an acquirer or purchaser of Controlled Facilities are entitled to such opportunity. Therefore, the claimant argued, the provision is in violation of the claimant’s property rights and equal rights. In regard to property rights violation, the Constitutional Court ruled that “the disputed provision violates the principle against excessive governmental measure because there was an alternative measure that would minimize the extent the claimant’s property rights are restricted while achieving the same result, and also because the sacrifice in individual interest exceeds the increase of public interest.” In regard to the equal protection violation, the Court ruled, “the disputed provision violates the equal protection rights as well because, unlike a purchaser or acquirer of Controlled Facilities, who is allowed to prove good faith or no fault to avoid liability, a person who owns, occupies or operates Controlled Facilities is not allowed for such opportunity.”Because the two persons ’liabilities are essentially the same in nature, the contested provision is an unreasonable discrimination, which is a violation of the equal protection rights. The following three options to amend the unconstitutional elements are suggested by the Constitutional Court: (i) impose primary liability on the person who directly caused the contamination, and impose secondary liability on the persons who own, occupy or operate Controlled Facilities, (ii) if the person who owns, occupies or operates Controlled Facilities acted in good faith and with no fault of his own, exempt such person from liabilities, and (iii) introduce a cap on strict liability, such as the market value of Controlled Facilities. Legislators are likely to choose one of the foregoing three options.