세월호참사 관련 국가배상의 법적 함의와 쟁점 - 헌법재판소 2017. 6. 29. 선고 2015헌마654 결정에 대한 평석 -

Abstract

On June 29, 2017, Constitutional Court of Korea made decisions on whether several provisions of Sewol Ferry Disaster Relief and Support Act (SFDRSA) are unconstitutional. Court declared that: Appeal Prohibition Clause, included in the Enforcement Ordinance for SFDRSA, art. 15, Form 15, is unconstitutional; the claim against Subrogation of State as Compensator Clause, SFDRSA art. 16, is rejected (i.e., the clause is constitutional); and the other claims are dismissed due to their procedural flaws. Filing the very first constitutional claim against the aforementioned clauses of SFDRSA and the Enforcement Ordinance for SFDRSA, Sewol Ferry Disaster victims initiated Court’s decisions on the clauses. In their decisions, Court clarified the constitutional meaning of main elements of State Compensation for Sewol Ferry Disaster. Concerning such meaning, this paper regards SFDRSA as a substantive law addressing State liability of compensation for Sewol ferry disaster, and analyzes aforementioned decisions accordingly. At the time Sewol ferry had sunk, State failed to meet her obligation to sanction life-threatening breach of safety regulations of the passenger ship carrier and to order Maritime Police to rescue as many passengers as possible. State is allowed to discharge subsequent duties through executive orders instead of statutes. Nonetheless, since the liability of compensation to Sewol ferry victims is directly imposed to State, she cannot subrogate the victims’ rights to get compensation from the responsible third party, if such third party exists. Also, State deserves no right to block the victims’ voices urging proper investigation of the disaster and criminal accusation against blamable entities. Therefore, Court’s decision to nullify Appeal Prohibition Clause, which infringes Sewol ferry victims’ rights the most, as an unconstitutional statute is righteous and welcomed. In contrast, the other decisions, which upheld unconstitutional statutes as constitutional and even dismissed some claims, are regrettable, because they virtually justify State-oriented nationalistic legislation and administration.