Research Report
Data-based Evaluation of Legislation :Legislation for Damage Response(Ⅴ) Special Act on the Fact-finding Investigation of and Damage Remedy for the Pohang Earthquakes
Ⅰ. Backgrounds and Purposes
○ On November 15, 2017, the 5.4 magnitude Pohang earthquake, which has an epicenter 9km north of Buk-gu, Pohang-si(Heunghae-eup area), is the second-largest earthquake ever. It was not a simple natural disaster but was triggered by a national R&D project for geothermal power generation.
○ 「Special Act on the Fact-finding Investigation of and Damage Remedy for the Pohang Earthquakes」 is the first special act on earthquake damage, which includes fact-finding investigation, damage remedy, and support for economic revitalization and community recovery.
○ Main issues of legislative evaluation
- Has the legislative purpose been appropriately stipulated of the remedy of damage from the Pohang earthquake?
- Whether the establishment, scope of work, composition, and operation of the fact-finding investigation committee are appropriate and effective in identifying the specific cause and responsibility for the Pohang earthquake?
- How should the Pohang earthquake fact-finding regulations be different from other disaster and social catastrophe-related fact-finding legislation?
- What are the results of the fact-finding investigation committee’s activities and what are the legislative problems and areas for improvement?
- Whether the establishment, scope of work, composition, and operation of the deliberation committee for the remedy for damages of Pohang earthquakes are appropriate and effective for the relief and support of victims’ rights?
- What is the progress and contents of damage remedy and what needs to be improved legislatively?
- What special support measures are being implemented for support of economic revitalization and community recovery, and are they effective?
- What kind of damage remedy and support do Pohang citizens want and to what extent can it be reflected?
- How should other national agencies and local governments establish fact-finding, damage relief, and support plans following the occurrence of an earthquake?
Ⅱ. Major Content
▶ Purpose clause
○ The purpose of the special act is to clarify the specific causes of occurrence of, and locus of responsibility for, the earthquakes triggered by the geothermal power generation project, and to promote the economic revitalization and community recovery of Pohang-si by providing remedies for damages caused by such earthquakes.
- For the purpose of the law, it is specified that the Pohang earthquake was triggered by the geothermal power generation project, and the scientific finding of the government research group are accepted.
- This can be seen as an expression of determination to solve the problem of scientific debate on the cause of the Pohang earthquake by legislative way.
- Therefore, the purpose clause is related to the target and scope of remedy and support for damage caused by the triggering earthquake.
▶ Fact-finding related clauses
○ Appropriateness fo the scope of the fact-finding committee’s purpose
- The purpose of the establishment of the fact-finding committee is a mixture of disparate elements, such as the investigation of scientific and technological causes and legal and administrative responsibilities.
- Looking at the actual activities of the fact-finding committee, it seems that a great deal of weight is placed on ‘responsibility’ among the fact-finding of the cause and responsibility.
○ Appropriateness of the fact-finding committee form
- Compared to other legislative precedents related to fact-finding, it seems that there is no alternative other than the organization form of the committee
○ Appropriateness of belonging to the fact-finding committee
- In complex disasters, the form of the committee under the Prime Minister is evaluated as appropriate legislation in that cooperation and coordination of various ministries(e.g. the Ministry of Strategy and Finance, the Ministry of Public Administration and Security, The Ministry of Trade, Industry and Energy, etc.) is required.
○ Task of the fact-finding committee
- Considering that the main legislative purpose of the fact-finding committee is to thoroughly find out who is responsible, it could have been considered to include “matters concerning the request for a special prosecutor’s resolution at the National Assembly.”
○ Adequacy of committee size
- The size of the fact-finding committee, which consists of nine members, including the chairperson and one standing member, can be evaluated as appropriate, but the number of standing members is small compared to other legislative examples.
○ Composition of the committee
- Disaster-related fact-finding committees should adopt a composition method that allows the capabilities of members with expertise in each field to be exercised without being biased in order to identify the complex nature of the disaster.
- The fact-finding committee is evaluated to have relatively evenly selected experts in various fields.
○ Appropriateness of not reflecting victim representation
- Considering that the affected area is limited to the Pohang area, and that the legislation takes into account Pohang’s economic vitalization and community recovery, the fact that the victims’ representatives are not included in the composition of the committee cannot be called appropriate legislation.
○ Appropriateness of investigation application and dismissal decision provisions
- The fact-finding committed confirmed 25 investigation tasks through the activity report and classified them into 6 items. It was evaluated that the investigation was not focused on processing the application case by appropriately using the regulations related to the investigation by authority.
○ Appropriateness of provisions related to the location of responsibility for the Pohang earthquake
- There was no legislative consideration for the specific nature and type of responsibility, and only the task of investigating the truth about responsibility was given. If no consideration is given to the scope of responsibility itself in legislation related to accountability, the fact-finding investigation inevitably proceed passively.
○ Problem of investigative authority
- The fact-finding committee's authority to investigate the truth was very insufficient compared to other legislative cases such as the Sewol Ferry Truth Investigation Act and the May 18 Truth Investigation Act, and sanctions against refusal to investigate were also weak.
○ Problems in the enforcement of the provisions of accusations and investigation requests
- There was a need for the fact-finding committee to actively utilize the right to file a complaint and request an investigation under Article 12 of the Pohang Earthquake Damage Relief Act, but it was not effectively utilized.
○ The necessity of re-establishing the relationship between technical investigation and judicial investigation
- If the technical investigation and investigation are not separated in the disaster investigation, the technical investigation will be conducted focusing on matters necessary for judicial investigation and prosecution.
- In order to achieve the purpose of the fact-finding committee, which is an objective investigation of the structural and social causes of disasters and disasters that are not limited to legal responsibility, it is necessary to separate the judicial investigation from the fact-finding process.
▶ Damage remedy related clauses
○ Appropriateness of the purpose of the deliberation committee
- It can be evaluated that the purpose of the deliberation committee for remedy for damages of the Pohang earthquakes established to carry out tasks related to relief and support for victims of the Pohang earthquake has been set appropriately.
○ Appropriateness of the form of the deliberation committee
- Like the fact-finding committee, taking the form of a ‘committee’ was evaluated as appropriate when considering other legislative precedents.
○ Appropriateness of belonging to the deliberation committee
- Like the fact-finding committee, legislation placed under the Prime Minister was evaluated as appropriate in that cooperation and coordination of various ministries is necessary.
○ Evaluation of the composition of the deliberation committee
- The composition of the deliberation committee includes public officials belonging to the senior civil service, but considering the quorum, deliberation and resolution on damage relief can be made only by the government’s senior civil service.
- In the case of the Ministry of Trade, Industry and Energy, it is the subject of fact-finding by the fact-finding committee and serves as a member of the deliberation committee, which can be pointed out as a problem.
○ Characteristics of subsidies for remedying damages
- The Special Act uses the term ‘subsidies for remedying actual damages to the victims’, which is based on the nature of damage relief that cannot be confirmed until the fact-finding committee’s fact-finding and responsibility determination results are released. For practical damage relief, the deliberation committee is providing rights relief in the form of ‘subsidies’.
- Payment of alimony for mental damages caused by the earthquake is not included in the target of support, so it is being pursued as a separate lawsuit.
- Absence of reparation or compensation for alimony and business loss is in the policy direction of damage support in the sense of dispensation, and it is difficult to see it as a complete damage relief in consideration of the perpetrator.
○ Allocation of burden to the state and local governments
- In legislation on disasters, etc. that occur in a regional scope, such as the Pohang earthquake, it is desirable to prepare provisions for the burden of the state and local governments.
▶ Support for economic revitalization and community recovery related clauses
○ In order to analyze the impact of the implementation of the Special Act on the economy of the Pohang region in various ways, a rigorous empirical analysis was attempted using a panel fixed effect model after overall examination of the changes in the regional economy after the earthquake occurred.
- Starting with the implementation of the Special Act, it was found that most economic indicators improved.
Ⅲ. Expected Effects
○ Review Practical legislative effectiveness through legislative evaluation using data on the Special Act.
○ By analyzing the achievements and limitations of the Special Act, it can be used as basic data to establish the legislative direction and improvement plan for special laws related to disasters in the future.