災難事故에 있어서 公務員의 義務와 責任

Abstract

In a major catastrophic accident, the duties of the government officials are questioned to hold them responsible. Regarding the Sewol-ho incident, violation of duty of good faith and obligation to maintain dignity was a major issue in the case of disciplinary responsibility for the head of the Jindo Coastal Vessel Traffic Service (Jindo VTS). The Seoul High Court ruled that the disciplinary action was unlawful, but it was quashed by the Supreme Court of Korea. However, the duty of good faith and the obligation to maintain dignity as a main reason for the disciplinary responsibility of government officials, may be very abstract and ambiguous. I think that the obligations or duties of government officials are based on constitutional principle of sovereignty and democracy. In Germany, the constitutional duty of loyalty is recognized in accordance with Article 33 (4) of the Basic Law for the Federal Republic of Germany. Based on this, Article 60, Paragraph 1 of the Federal Civil Service Act and Article 33 of the Civil Servant Status Act of the State of Germany provides fundamental duties or obligations of public officers. Today the constitutional duty of loyalty implies compliance with the Constitution or laws, not with the monarchy. In addition, the duty of good faith, which is to fulfill his duty by giving full personality and conscience, seems to be derived from the constitutional duty of loyalty in Germany, but it is rather duty obligation or obligation to perform his duties. The duties of government officials are classified in various ways, but the types of duties are not unified. However, the duty of a government official is difficult to separate from his status. The obligation to maintain dignity is very vague and is similar to obligation to prohibit credit loss in Japan. It is necessary to revise the duty of good faith and obligation to maintain dignity to conform to the social trend. Although there is no basis for the duty of loyalty in the Constitution of the Republic of Korea, the provisions of the National Government Officials Act or the Local Government Officials Act should establish the "fundamental duty of job faithfulness" covering the duty of good faith and obligation to maintain dignity. In case of a state tort liability due to the ineffectiveness of government officials in a major disaster accident, violation of official duty is an important criterion. However, the concept of this government official duty (obligation) is ambiguous and confusing relating to interpretation. However this concept does not exist in the Constitution or the State Tort Liability Act of the Republic of Korea. In Busan Metropolitan City's case, it is acknowledged that the State Tort Liability is based on the duty violation of fire-fighting officers. However, it is desirable to apply the doctrine of the claim to administrative intervention in case of an emergency situation or a serious danger. The reduction of discretionary power is recognized in order to acknowledge the tort liability for the government official's omission. In addition, not in the case of such an emergency or serious danger, the absence of any safeguards or corrective orders can be illegal if it is in specific circumstances sufficiently predicted. The position of the Supreme Court of Korea, which regard the omission of government officials as unlawful when there is no rationality or social justification, is in my personal opinion a logical leap. In the future, it is necessary to improve the structure and system of government officials' duties, and the changes and developments of state tort liability cases regarding the non-feasance of government officials are required.