헌법개정과 국가배상책임의 재구성-과실책임제도에 대한 비판적 검토를 중심으로

Abstract

Article 29(1) of the Constitution of the Republic of Korea recognizes as one of the fundamental rights the state compensation claim of any citizen who have suffered from an “unlawful action by a public official” for damages against the State or other responsible administrative body (herein after the “State”). Article 2(1) of the State Compensation Act elaborates on this by requiring a public official’s “illegal” performance of duty by “intention or negligence.” How to interpret the “illegality” and “negligence” requirements and what their standards should be are the key questions in establishing the state liability system. To this end, it is necessary to first identify state liability under Article 29(1) of the Constitution and Article 2(1) of the State Compensation Act. Absolute majority of scholars and the precedent agree in construing “public official’s negligence” to mean the State’s direct liability for its own acts, as opposed to vicarious liability for public officials’ tort. This is because our constitutional structure is one in which the State’s unlawfulness is adjudicated through such judicial processes as the adjudication on the constitutionality of statutes, constitutional complaint, and appellate litigation, and the legal effect flowing therefrom is directly attributable to the State. In light of this, there is no reason not to view that the legal effect of tort liability is also directly attributable to the State, and appellate proceedings and state compensation claim do not differ in that both hold the administrative subject accountable for its error. An analysis of the Supreme Court’s case law on state liability reveals two main issues concerning the illegality and negligence requirements. First, there are a series of cases in which the Court seems to deny the illegality of a disposition on the ground that the pubic official’s performance of duty cannot be deemed to have lacked “objective legitimacy”, even though the same disposition was revoked in an appeal litigation because of its illegality. The differentiation of the standard against which to determine illegality in appellate proceedings and state compensation claim is unpersuasive in view of the common purpose of administrative control, and can be problematic in that it may undermine public confidence in judicial process. Second, there are also cases in which the Court denies any negligence on the part of the public official, even while admitting that there were illegality in the public official’s interpretation, application, and subsumption of the underlying statutory provision or in the weighing and balancing of interests in exercising his/her discretion. This is problematic not only because these cases set the bar too low for the standard of care required, but also because the cases determine whether there was any breach of duty of care from the perspective of individual public officials. To solve the second problem, it is important to emphasize the objective nature of state liability by requiring only “defect or error in the performance of public duty” or “illegal performance of public duty by the State, ets.”, while removing the “public official’s negligence” requirements. To solve the first problem, it is necessary to set a higher bar for establishing liability by, for instance, requiring a “gross” defect or illegality, for certain types of administrative process, such as judicial trials, which inherently require the limitation of state liability, and by so doing, remove any incentives to set different criteria for judging “illegality (defect)” by different types of administrative process or by different types of remedy, as a means to gain specific legitimacy. Revision of the phrase, “unlawful action by a public official”, as stated in Article 29(1), into “unlawfulness in the performance of public duty” would help set the guidelines for a future revision of the State Compensation Act, as well as for a more objective interpretation of the concept of “public official’s negligence” under the current Act.