국가배상소송의 위법성 판단기준 및 실무상의 적용례에 관한 검토 - 항고소송에서 처분의 위법성이 확인된 사안을 중심으로 -

Abstract

In the judgment, the Supreme Court confirmed the existing precedent that the illegality of state compensation lawsuit is different from the illegality of appeal litigation and the 'objective justification' is required to admit state liability. In particular, the Supreme Court denied state liability without exception on the grounds that the objective justification was not lost in the case where the rejection disposition was a problem due to errors in the questions of the national examination. The Supreme Court's judgment is somewhat regrettable in that it repeats the attitude of existing precedents that recognize state liability to a very limited extent, especially considering the nature of the disposition recognized as illegal. This article reviewed the recognition of the illegality of state liability and the criteria for judging the illegality in cases where the illegality of administrative disposition is confirmed in appeal litigation. Prior to that, the nature and requirements for state liability were summarized, the relationship between the illegality of appeal litigation and state compensation lawsuit was examined, and the meaning and criteria for judgment were reviewed. Furthermore, by organizing the trends of the Supreme Court precedents and related court judgments, the article discussed how the requirements for objective justification function in specific cases. The requirement of objective justification required in determining the illegality of state liability is functioning to limit the scope of state liability. The Supreme Court has shown an attitude of acknowledging state liability only when administrative dispositions are contrary to rulings that precede administrative dispositions or when administrative dispositions contrary to them are taken, even though the administrative agency has given a considerable level of trust in advance. Alto this attitude can be confirmed to be reflected in lower courts. In specific cases, the conclusion is drawn that objective justification has not reached the extent of loss, mainly focusing on the type of administrative disposition and how the disposition was made. However, some lower courts are attempting to actively recognize state liability by focusing on the aspect of profits infringed by the disposition and the extent of damage caused by it. This requirement of objective justification is used as a tool to limit the scope of state liability to an appropriate extent, and if the characteristics of administrative dispositions that have been confirmed to be illegal and the aspects of profits and damages infringed by them are more actively considered in its judgment, it can help to expand the scope of state liability to an appropriate level and find a balance.