職務上 義務違反으로 인한 國家賠償責任(대상판결: 2008. 6. 12. 선고 2007다64365 판결)(참조: 2008. 4. 10. 선고 2005다48994 판결)

Abstract

The illegality of the State Compensation Act on the subject case is defined as follows: The harmful acts of public officials of a state compensation liability should be a violation of the law, and the meaning of a violation of the law are to violate the laws strictly, as well as, to have lack of objective legitimacy generally including violation of the rules and regulations that public servants ought to keep such as proper respect for human rights, not abuse of power, and faithfulness. The illegality of the State Compensation Act was determined in the aspect of the behavior illegality theory, and by the standard of objective legitimacy’s lost in the aspect of relative illegality theory at the case. However, just as the majority opinions support, behavior illegality theory is reasonable for the concept of the illegality of the State Compensation Act. In this case, to be recognized as the state compensation liability for the damages caused by breach of duty to country, its purpose should be protection of the public interests as well as private interests for individual citizens. And, without written regulations, there is case which obligations of civil servants at duty (duty to avoid a loss) is recognized based on natural principles at certain occasions. In addition, the reference cases request no social validity by significantly lost rationality or “a significantly unreasonable” in order that not to invoke administrative power have illegality. However, as far as the duty obligation concerned is legal one, when viewed in the light of the principles of administration by law, it would be reasonable that the violation have illegality on the State Compensation Act. Also, although there is no written regulations, the case is reasonable that recognize its obligations to prevent damage and that consider its violation as illegal at the State Compensation Act, but the rationale is not in a simple natural principles but in a duty of civil servants to guarantee the basic rights and in the regulations and related laws. Under specific circumstances, when the discretion is shrunk to null or when it violates the proportional principle, not to invoke administrative power should be considered as illegal. The concept on illegality of the State Compensation Act should be defined more clearly and logically, and illegality should be studied on a case by case by the type in the future.