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Jipyong Won the Case of Claim for Decontamination of Polluted Soil at the U.S. Military Bases It Conducted on Behalf of Gyeonggi Province before the Supreme Court

2015.04.21

In the claim for decontamination of polluted soil initiated by Gyeonggi Province, the land owner, against the Korean government (i.e., the Ministry of National Defense) by reason of severe soil contamination of the land used by the United States Forces in Korea ("USFK") as the U.S. military base and returned to Gyeonggi Province, which Jipyong conducted on behalf of Gyeonggi Province before the Supreme Court and won a favorable ruling for the Plaintiff, Gyeonggi Province, from the Supreme Court. 
 
 
1. Outline of the Case 
 
The land in question (the "Land") is located in Munsan-eup, Paju-si, Gyeonggi-do, which was used as the site for Munsan Jeil High School; placed under requisition in 1957; granted to the USFK; and used as the U.S. military base for 50 years. As the U.S. military base was returned to the Minister of National Defense in 2007, the Minister of National Defense cancelled the requisition of the land and then, returned it to Gyeonggi Province in 2008. 
 
Since the environmental contamination of the Land resulting from use by the USFK was serious, the survey of environmental contamination was made. As a result, the cost of soil decontamination was estimated to be 7 billion Won and up to 10 billion Won (the officially assessed land price of the Land was 11 billion Won). 
 
Gyeonggi Province, the owner of the Land, filed the lawsuit, arguing that the Korean government has the obligation to decontaminate the soil pollutants and remove the structures on the Land in accordance with the Special Act on Support for Areas, Etc. Adjacent to Districts Granted to the U.S. Armed Forces in Korea (the "Support Special Act") and the Soil Environment Conservation Act. 
 
 
2. Purpose of Claim 
 
"The Korean government shall decontaminate the soil pollutants and remove the structures as described in the list attached to ensure that the substances listed in the Criteria for Worrying Soil Contamination as attached do not exceed the applicable criteria on the Land." 
 
 
3. Results of the Case 
 
The high court's ruling accepting the claim for decontamination of the soil pollutants and denying the obligation to remove the structures was finally acknowledged by the Supreme Court. 
 
 
4. Issues of the Case 
 
a. Plaintiff's Argument 
 
The Support Special Act imposes the Minister of National Defense the obligation to remove structures on the ground and polluted soil before taking any measures such as release from requisition against the land returned from the USFK (Article 12(5)). Meanwhile, the Soil Environment Conservation Act provides that the person causing soil contamination shall, where any damages occur due to the soil contamination, compensate for such damages and purify the contaminated soil (Article 103). The Plaintiff made the claim for removal of the structures and decontamination of polluted soil against the Korean government based on the foregoing laws. 
 
b. Defendant's Argument 
 
The Act of the Management and Disposal of Property held by the State or Local Governments following the Implementation of 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 (the "Management and Disposal Act") provides that when the Minister of National Defense transfers jurisdiction over, or returns, any property of the state or a local government returned from the USFK, the Minister shall not be responsible for the reinstatement of the property (Article 6(2)). 
 
Based on the provision, the Ministry of National Defense argued that the Korean government is not responsible for the reinstatement. 
 
c. Judgment of the First Trial Court 
 
The first trial court acknowledged the obligation to reinstate to the status quo under the Support Special Act and accepted the entire Plaintiff's claim for decontamination of the polluted soil and removal of the structures (Seoul Central District Court Decision 2009Kahap145485 Decided August 11, 2010). 
 
d. Judgment of the Appellate Trial 
 
The appellate trial court did not accept the obligation to remove the structures and accepted only the obligation to decontaminate the polluted soil based on the following legal grounds (Seoul High Court Decision 2010Na82648 Decided February 9, 2012): 
 
"Since the legal relation of land use was converted into that of a gratuitous lease and the requisition was invalidated as the Management and Disposal Act was enacted in 1967, and thus, the release of requisition is effective, the obligation to purify the soil under the Support Special Act is not acknowledged, in principle. 
 
However, the responsibility for reinstatement to the status quo that is exempt under the Management and Disposal Act is limited to the responsibility for reinstatement of the changed portion as the result of use by the ordinary method of use to the status quo, and even the responsibility for reinstatement to the status quo by removing the results of illegal use not contemplated at the time of lease is not deemed to be exempt. Therefore, the court judges that the responsibility for reinstatement to the status quo is not exempt with regard to the soil polluted beyond the criteria specified in the Soil Environment Conservation Act during the period of use by the USFK." 
 
e. Judgment of the Supreme Court 
 
The Supreme Court finally accepted the judgment of the appellate trial court partially accepting the Plaintiff's claim based on the following legal grounds (Supreme Court Decision 2012Da22709 Decided September 25, 2014): 
 
"When a local government is returned its property leased free of charge for an infinite period and bears the ordinary responsibility for reinstatement of the property to the status quo, the local government can be deemed to have significantly achieved the purpose of legislation of the Management and Disposal Act, i.e., the share of national defense obligation. Accordingly, the interpretation that the local government shall be responsible for reinstatement of even the damage resulting from the environmental pollution not expected at first to the status quo is not acceptable from the two points of view: the purpose of legislation of the Management and Disposal Act focusing on the certainty and speed of provision and the principle of equitable treatment." 
 
 
5. Meaning of the Case 
 
This is the first final judgment accepting the obligation to purity the polluted soil of the area returned by the USFK. The Supreme Court ruled that the Korean government is responsible for the obligation although the U.S. is not responsible for the obligation pursuant to SOFA. 
 
When interpreting the Management and Disposal Act under which the Minister of National Defense is exempt from the responsibility for reinstatement of the returned land to the status quo, the Supreme Court judged that the Minister of National Defense could not be interpreted to be exempt even from the responsibility for "reinstatement of the soil pollution resulting from the illegal use by the USFK which could not be expected at first". The judgment is meaningful in that it aimed at reasonable sharing between the Ministry of National Defense and a local government for the reinstatement of the area returned by the USFK to the status quo.

Awards & Commissions Jipyong Received ‘the Grand Award for Attorney Dedicated to Public Interest’ and ‘the Award for Maintaining Balance between Work and Family Life in Legal Profession’ 2015.04.22

News Update Jipyong Won the Case of Claim for Decontamination of Polluted Soil at the U.S. Military Bases It Conducted on Behalf of Gyeonggi Province before the Supreme Court 2015.04.21

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