국가배상법상 이중배상금지규정의 의의-국가배상청구와 보훈보상금청구의 경합에 관한 소고-

Abstract

In our national compensation law, there is a provision called the prohibition of double compensation. This is the provision of the proviso to Article 2 of the State Compensation Act. According to this, “Provided that where military personnel, civilian employees of the military, police officials, or reserve forces are killed or injured in the course of performing their duties in relation to any combat, training, etc., they or their bereaved family shall not claim damages under this Act and the Civil Act, if they may receive compensation, such as disaster compensation, pension for the bereaved family, disability pension, under other statutes.”The main reason for the establishment of this proviso was to alleviate the financial burden of the country caused by paying both damage compensation and loss compensation. Nevertheless, there has been a debate over the unconstitutionality of this regulation for a long time due to the fact that damage compensation and loss compensation are different in nature and that the amount of loss compensation is less than ordinary damage compensation. However, this paper does not intend to talk about the constitutionality of this double compensation prohibition clause. It is merely an attempt to get closer to the reality of the double compensation prohibition rule based on the Supreme Court precedent regarding the prohibition of double compensation. The Supreme Court made an interesting ruling on the relationship between the national claim for compensation and the claim for veterans' compensation. This is the case with the Supreme Court Decision 2015Du60075 (target judgment) on February 3, 2017. According to the proviso to Article 2 of the State Compensation Act, it is not allowed to receive national damage compensation after receiving veterans' compensation, but on the contrary, it is possible to receive national damage compensation first and then receive veterans' compensation. The main reason is that there is no provision prohibiting this in the Veterans Compensation Act. It cannot but be said that this allows differences in results according to the order of claims. This paper raises questions about whether it is justified to make a difference in the results according to the order of the claims in the case where there are two claims: a national damage compensation claim and a veterans compensation claim. And it attempted to accurately interpret and understand the meaning of the proviso to Article 2 of the State Compensation Act, and to critically examine the logic and conclusions of the target judgment. In conclusion, I do not know if there are other circumstances that are not indicated in the judgment, but it is still questionable whether the logic of the target judgment is valid to receive damage compensation first and receive loss compensation again because the Veterans Compensation Act does not have the same provisions as in the proviso to the State Compensation Act. It was regrettable that the target judgment was too biased toward literary or grammatical interpretation in solving the problem, which conflicted with the purpose of the proviso to Article 2 of the National Compensation Act, breaking the overall harmony of legal order.