Research Report
A Study on the Legal System for Social Disaster Damage Relief
Ⅰ. Background and Purpose
○ Disasters that have occurred recently are mega-scale complex disasters that combine natural and social disasters, and new types of disasters that have not been experienced before, such as new infectious diseases, are appearing.
- Relief for damage to human life or property, such as fine dust, large-scale forest fires, outbreaks of infectious diseases such as COVID-19, and the Itaewon crowd accident in 2022, is emerging as an important social issue to be resolved by the state, and the need for expansion of damage relief by the state or local governments and improvement of the damage relief system is growing. Legal disputes over damage relief are also increasing.
○ With regard to the social disaster damage relief under the Disaster and Safety Act, which is the basic law governing disaster management, it is difficult to provide proper damage relief due to legal deficiencies and flaws, and other individual laws also show the same problem related to damage relief due to deficiencies and flaws in the law.
- In addition, by reviewing the damage relief systems in individual laws and statutes related to disasters, this study intends to explore the implications of the damage relief systems for social disasters by examining the social disaster damage relief laws and damage relief cases of major countries, as well as analyzing legal problems related to social disaster damage relief such as compensation for losses.
○ Through this, this study aims to present a plan to amend relevant provisions concerning compensation for losses and government support under the Disaster and Safety Act for the legal improvement of the social disaster damage relief system and to present amendments to individual laws.
Ⅱ. Survey and Analysis of the Current Status and Actual Conditions
▶ Survey and analysis of the current status and actual conditions of social disasters⋅damage relief
○ Korea recently recorded the highest number of deaths (as of 2021) due to social disasters such as infectious diseases caused by COVID-19, building collapses, and marine ship accidents, and property damage caused by social disasters over the past 10 years accounted for 77% of the total damage due to forest fire disasters, livestock diseases, and large-scale fires in crowded facilities. Therefore, it is urgent situation that requires proper support and loss compensation for disaster victims suffering human and physical damage.
▶ Recent cases of major social disaster relief in Korea
○ After examining the damage caused by the recent large-scale social disasters such as the sinking of the Sewol ferry, the Pohang earthquake, Goseong forest fires and other large fires, and COVID-19 and infectious diseases, the current status of damage relief, and relevant criteria, problems in the relief process were reviewed.
- This study also analyzed cases of compensation for losses related to damage by social disaster type and cases of compensation for losses related to natural disasters such as the Gyeongju earthquake and Pohang typhoon.
▶ Cases of overseas social disaster relief
○ This study compared and analyzed the legal systems and major systems related to damage relief in the United States, Germany, France, and Japan, which can be significant examples in the discovery of measures to improve social disaster laws and systems in Korea.
- By researching the Robert Stafford Disaster Relief and Emergency Support Act, a representative U.S. recovery support law, and analyzing the COVID-19-related financial support bill and small business support policy as a specific case of social disaster damage relief, this study intends to derive implications that can help improve the Korean system.
○ This study analyzed German disaster laws including the Federal Civil Protection and Disaster Relief Act (ZSKG) and state laws to examine Germany's social disaster damage relief system.
- In particular, it analyzed 23 emergency laws, which are considered having made a positive legislative contribution to responding quickly to and overcoming the COVID-19 incident, and by reviewing various financial support measures to support emergency recovery from large floods, this study intends to find policy improvement plans and implications that can be applied in Korea.
○ By reviewing the disaster relief laws and compensation systems in France, examining emergency laws and joint fund cases to cope with the Covid-19 epidemic, and researching the establishment of an exceptional disaster system (CAEX), this study analyzed the characteristics of French disaster response laws and related funds and systems to derive implications.
○ In particular, this study reviewed the damage relief system under the Framework Act on Countermeasures against Disasters, the basis of the disaster recovery support system in Japan, which provides for various support systems for victims in the recovery and revival stages after a disaster.
- In the case of the Japanese system, the amount of government subsidies for natural disasters is limited to a minimum amount of money to meet basic needs. It can work positively in terms of managing the disaster fund, but it can be seen as a problem because the difficulties may be excessive for underprivileged disaster victims.
Ⅲ. Legal Review of Major Systems
▶ Legal review of social disaster damage relief system
○ Controversy is mounting over whether the state needs to remedy the damage caused by social disasters, and, if so, by what means and to what extent.
- Since the review of the basis and necessity of the social disaster damage relief system is a very important legal and theoretical matter in the establishment and operation of the social disaster damage relief system, it is considered in detail.
○ Furthermore, this study analyzed the purpose and contents of the damage relief systems, such as (1) the loss compensation system and (2) the disaster support fund system, which are damage compensation systems for social disaster damage relief stipulated in the Disaster and Safety Act and related individual laws.
- In addition, by analyzing the differences in the legal concept and details of similar damage relief systems, the conceptual difference and institutional purpose of loss compensation and disaster subsidies are clarified in terms of the targets and scope of social disaster damage relief.
▶ Damage relief system under the Framework Act on the Management of Disasters and Safety and individual laws
○ Under the provisions of the Disaster and Safety Act, operating losses, other than physical damage, cannot be compensated, and losses not stipulated in individual laws cannot be compensated, either.
- Accordingly, specific problems and improvements are identified by analyzing the damage relief system and the provisions related to the damage relief in detail under the Framework Act on the Management of Disasters and Safety.
○ By reviewing the damage relief systems and relevant provisions in (1) the Special Act on Relief and Support for Damage from the April 16 Sewol Ferry Disaster, (2) the Earthquake and Volcano Disasters Countermeasures Act, (3) the Framework Act on Forestry and Forest Protection Act, (4) the Infectious Disease Control and Prevention Act, and (5) the Act on the Protection and Support of Small Businesses, this study examined whether there is any defect in linking individual legal systems with the Disaster and Safety Act and the problems of practical application of such systems.
▶ Legal issues of social disaster relief system
○ Articles 64 and 66 of the current "Disaster and Safety Act" stipulate damage relief for social disasters, but there are no provisions regarding an agency examining and determining the payment of damage compensation and subsidies, as well as procedures for calculating damages and payment thereof, which are considered as major legislative inadequacies.
- In addition, there are no special provisions for matters necessary for general compensation payments, such as the exclusion or reduction of compensation payments, or redemption after payment.
○ As it is necessary to quickly stabilize the legal order by determining a period during which parties can claim for damages, and thereby securing legal stability, it is necessary to quickly establish legal relations by stipulating the duration of the right to claim compensation for losses in the Disaster and Safety Act.
○ As the Special Act on the Reduction and Management of Fine Dust and the Forest Protection Act do not have provisions related to damage relief, such as compensation for losses, there is a problem that compensation for damage is practically impossible.
- As there are no provisions in the current Disaster and Safety Act to apply mutatis mutandis the loss compensation provisions of the Disaster and Safety Act, it is necessary to stipulate it unless it is clearly recognized that there is no need for the damage compensation provisions, and it is also necessary to clearly stipulate the measures for the targets of damage compensation and the subjects of loss compensation in laws.
Ⅳ. Improvement Plan
○ In the case of multiple laws for disaster response, such as the Framework Act on Disaster and Safety, the focus is on disaster response, handling, and management, but there is little concern for post-disaster management and response, such as support for victims and restoration of local communities.
- As seen in the case of damage relief in the United States and France, it is considered that a more selective and intensive support policy through selection and concentration is important for relief and support for victims of social disasters.
- In the current Korean Disaster and Safety Act, there are only nine provisions related to support and recovery and only three provisions related to support for disaster victims. There needs to be more active legislative actions by legislators.
○ As a specific improvement plan, first, it is necessary to specify the targets and criteria for damage relief compensation and stipulate them as individual provisions so that the details of measures for compensation can be known.
○ Second, as the procedural provisions of the Land Compensation Act are applied mutatis mutandis, and the provisions related to the report of disaster damage subsidies are prescribed by Presidential Decree, the provisions regarding the damage compensation procedures are inappropriate. Therefore, the report suggests that the damage compensation payment procedures need to be specified.
○ Third, it is necessary to establish and operate a specialized examination committee as a collegiate body to reasonably examine and decide whether to take measures under the Disaster and Safety Act, whether there are losses due to measures, and whether to pay compensation for losses.
○ Fourth, as the Disaster and Safety Act does not provide for an objection procedure, such as an objection to compensation consultation, in relation to the damage compensation consultation, it is necessary to set the objection procedure, such as an objection to the damage relief compensation and subsidy decision.
○ Fifth, as there are no special provisions concerning the method of payment of compensation for losses, it is necessary to specify the payment method, such as exclusion, reduction, and redemption of compensation for damage relief and subsidies and to prescribe specific details by means of public notice by the Minister of the Interior and Safety.
○ The current Disaster and Safety Act stipulates about 40 items of disaster damage relief system, but there is a lack of legal basis for indirect support items. It is necessary to establish a basis for support to ensure smooth support by local governments.
- Rather than stipulating the grounds and procedures for damage relief in each individual statute, it is better to provide the basis for disaster damage relief in the Disaster Relief Act.
○ Some individual laws, such as the "Special Act on Fine Dust" and the "Forest Protection Act," do not include provisions related to damage relief, so it is partially recognized that it is necessary to establish new provisions therefor, but the requirements are insufficient. It would be better and more urgent to conduct a comprehensive legal review of the individual laws.
○Therefore, it is reasonable to promote the establishment of damage compensation provisions for individual laws as a long-term task, and in this study, in consideration of the reality and ease of revision of the legislation, if the damage compensation provisions in the individual laws are defective, it is proposed the damage compensation provisions of the Disaster Safety Act be applied mutatis mutandis.