긴급조치와 국가배상 -대법원 2022. 8. 30. 선고 2018다212610 판결-

Abstract

In the target judgment, an important issue is whether the President’s Emergency Measure No. 9 issuance and the duties of the investigative agency or judge who applied and executed it constitute an illegal act and whether the state’s tort liability is recognized. Desirably in the target judgment, the Supreme Court of Korea ruled the state is responsible for Emergency Measure No. 9 issued under the Yu-shin Constitution on the grounds of violating the rule of law and the duty to guarantee fundamental rights. However, there are many theoretical considerations in the argumentation method. It needs to be more persuasive that the Supreme Court of Korea acknowledged negligence after comprehensively understanding the issuance of Emergency Measure No. 9 and the duties of the investigative agency or judge who applied and executed it. A separate opinion that grasps the essence of state tort liability as the self-responsibility of the state is valid. Based on the theory of state responsibility(so-called self-responsibility theory), it is reasonable to acknowledge the state’s responsibility in external relations to the victim and assume that public officials’ negligence is presumed. For responsible public officials, the state should exercise the right to indemnify public officials in internal relations. Since the President’s Emergency Measure No. 9 and illegal acts of public officials such as investigative agencies that applied and executed it are acts performed as members of a unified administrative organization, the entire process can be understood as a series of state actions. However, the illegal acts of public officials who have executed unconstitutional emergency measures shall not be exempted. Applying the theory of organizational negligence is inappropriate as it can exempt public officials of the investigation agency from responsibility. This theoretical construction justifies the unconstitutional act of public officials and opens the way to repeat them. The president’s act of issuing emergency measures is an unconstitutional measure that seriously infringes on the people’s fundamental rights and undermines the constitutional order. It is a problem of normative illegality. There is controversy over the legal nature of emergency measures. In the target judgment, the Supreme Court of Korea didn’t actively judge it and considered it an Act enacted by the National Assembly. Regrettably, in the target judgment the Supreme Court of Korea did not discuss the possibility of the so-called ‘normative illegality(normatives Unrecht)’. It means the illegality of enacting of subordinate legislation. On the other hand, it is not easy to agree with the view that completely denies the responsibility for the judicial acts of judges. The judicial action of judges must be distinguished from illegal acts of public officials in the executive branch, with the president at the top. In this case, in consideration of the independence of the judges in their duties, the recognition of the state’s liability for the judicial actions of judges should be limited. So far, the criteria presented in case law are unclear. State responsibility should be recognized when a judge rules an Act that is objectively clearly unconstitutional or suspected of being unconstitutional, actively interprets and applies it, or significantly violates the objective duty of care to be observed as a judge. However, from a legislative point of view, it is desirable to provide a provision that limits the personal liability of judges in some stances (e.g., criminal acts), such as the German Civil Code, in consideration of the specificity of the judicial action. The issues presented in the target judgment will be a cornerstone and a critical turning point for developing the state tort liability theory.