[1] Allocation of the burden of proof of causation in pollution lawsuit

[2] Whether the Republic of Korea may claim exemption from liability against the victim of a tort related to the use of facilities, etc. of USF Armed Forces in Korea based on Article 5 (2) of the Korea-U.S. Administrative Agreement (negative)

[1] Generally, in a claim for damages due to a tort, the burden of proof of causation between the harmful act and the damage is borne by the claimant. However, in a lawsuit claiming for damages due to air pollution or water pollution, there are many cases where the cause substance discharged by the company indirectly damages by using air or water as a medium, and it is difficult or impossible to prove the causal relationship between the harmful act and the damage in nature, since there are many cases where the present scientific level cannot be clear about pollution issues. Thus, it is reasonable to view that the victim's demand for strict scientific proof as to the existence of factual causal relationship might result in the result of the actual refusal of judicial relief due to pollution, while it is highly easy for the victim to investigate the cause more easily than the victim, and it is likely that the cause might be concealed. Thus, it is reasonable to view that the perpetrator company is not liable for the damage unless it proves that the harmful substance was discharged and the damage was caused by its arrival on the damaged article.

[2] Article 5(2) of the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea provides that "the Republic of Korea shall not bear any burden on the United States, and shall provide all facilities, areas and traffic rights, including facilities and areas jointly used as facilities and areas in airfields and ports as provided in Articles 2 and 3 during the term of validity of this Agreement, and shall compensate their owners and suppliers as appropriate. The Government of the Republic of Korea shall guarantee the use of such facilities and areas by the Government of the United States of America, and shall not be affected by any third party's claims that the Government of the United States of America, agencies and employees may bring in connection with such use. In full view of the purport of the above provision and Article 23(5) and (6) of the said Agreement, Article 5(2) of the said Agreement provides that the relationship between the Republic of Korea and the United States of America with respect to the provision of facilities and claims against a third party related to the use of facilities in US.

[1] Article 750 of the Civil Code, Article 288 of the Civil Procedure Act / [2] Articles 5(2) and 23(5) and (6) of the Agreement between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual

[1] Supreme Court Decision 95Da2692 delivered on June 27, 1997 (Gong1997Ha, 2290), Supreme Court Decision 2000Da6566, 65673 delivered on October 22, 2002 (Gong2002Ha, 2788), Supreme Court Decision 2003Da2123 delivered on November 26, 2004 (Gong2005Sang, 2005Sang, 200)

Seoul High Court Decision 201Na1448 delivered on August 1, 201

Republic of Korea (Government Law Firm Corporation, Attorneys literature-Bed et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Na92423 decided May 14, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the occurrence of liability for damages

In general, in a claim for damages due to a tort, the burden of proof of causation between the harmful act and the damage is borne by the claimant. However, in a claim for damages due to air pollution or water pollution, there are many cases where the cause substance discharged by an enterprise indirectly damages by using air or water as a medium, and pollution issues are not clear at the present scientific level, so it is extremely difficult or impossible to prove in nature one of the causal relationship between the harmful act and the damage. Thus, it is highly difficult or impossible to prove in nature one of the causal relations between the harmful act and the damage. Thus, it is likely that the victim's request for a scientific strict proof as to the existence of factual causal relation might result in the refusal of judicial relief due to pollution. On the other hand, it is highly easy for the victim to investigate the cause much more easily than the victim, and it is likely that the cause might be concealed. Thus, it is reasonable to view that the harmful substance discharged by the company as a matter of technology and economy, and if the damage was caused by its arrival of the damaged article, it cannot be exempt from the responsibility of the perpetrator.

citing the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as stated in its holding, based on the following facts: ① the flow of groundwater near the green square basin is the direction of Recording in the territory of the United States Armed Forces; ② the same JP-8 used only by the United States Armed Forces in Korea, ③ removed the underground storage tank on the ground that the usfk failed to pass a water leakage test on February 2, 2001; ④ in these underground storage tanks, JP-8 was kept; ④ in the event gasoline and JP-8 flowed, gasoline was discharged in combination, and ④ in the event gasoline and JP-8 flowed, gasoline was reduced in the percentage of gasoline in the total amount of oil, and ⑤ in the Plaintiff’s nearby oil storage facilities, such as usfk, which have not been owned by the usfk in the middle of the usfk (U.S.).

In light of the above legal principles and records, we affirm the above fact-finding and judgment of the court below as just, and there is no error in the misapprehension of facts against the rules of evidence, incomplete hearing, and the misapprehension of legal principles as to the burden of proof of tort as otherwise alleged in the

2. As to Article 5(2) of the Agreement under Article IV of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (hereinafter “Korea-U.S. Administrative Agreement”).

Article 5 (2) of the Korea-U.S. Administrative Agreement provides that "the Republic of Korea shall not impose any burden on the United States, and during the effective period of this Agreement, provide all facilities, zones and traffic rights, including facilities and areas jointly used, such as airfieldss and ports provided for in Articles 2 and 3, and shall compensate their owners and suppliers as appropriate. The Government of the Republic of Korea shall guarantee the use of such facilities and areas by the Government of the United States of America, and shall not be affected by any third party's claims that may be brought by the Government of the United States of America, agencies and

In full view of the purport of the above provision and the contents of Article 23 (5) and (6) of the Korea-U.S. Administrative Agreement, Article 5 (2) of the above provision merely provides for the defendant's duty to provide facilities to US Armed Forces and the relationship between the defendant and the United States with respect to third party's claim regarding the use of facilities to US Armed Forces in Korea, and it cannot be a ground for the defendant's exemption from liability against the victim of tort related to the use of facilities, etc.

In the same purport, the court below is just in holding that the defendant cannot claim the exemption from liability against the plaintiff who is the victim of the tort on the ground of Article 5 (2) of the above Act, and there is no error of unreasonably limited interpretation of Article 5 (2) of the Korea-U.S. Administrative Agreement, as

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)