경찰작용과 국가배상책임

Abstract

Police action often poses risks of state tort liabilities since it involves the exercise of governmental authority and directly contacts with people in most cases. This article is designed to address state tort liabilities regarding police action, based on the precedent discussions and legal cases. There are several purposes of discussing state tort liabilities regarding police action. From the legal policy perspectives, the purpose is to thoroughly analyze types of police action that frequently trigger state tort liabilities cases in order to minimize irregular practices. From the legal theory perspective, the purpose is to maintain more politically correct and logically consistent attitude toward the discussions over state tort liabilities regarding police action. With respect to "illegal" defined by the State Liability Act, some people consider that the violations are not confined to ordinance violations; but any action or behavior against human rights, social order and good public order and customs, which cannot be objectively justifiable. However, this interpretation is too vague. "Illegal" must be confined to violations of statutes and common laws. Nevertheless, there are conflicting ideas about whether administrative orders may be included in this regard. Administrative orders are interpreted as part of ordinances in some corners of society, while such idea was once denied by court. Unlike liabilities for negligence, public officials' liabilities for nonfeasance are based on broad protection responsibilities, and the state is deemed primarily responsible for protecting its people, including their lives and properties. However, such legal precedents have a number of problems. Firstly, while citizens' property rights are protected by law, the details and limits are also defined by law. No property rights can exist unless the law dictates. In addition, it is hardly imaginable that the state reigns over the law. Second, citizens' lives and bodies are protected by law, and the details are stipulated by individual acts. Among many reasons behind acknowledging state tort liabilities, such as compensating victims, deterring illegal behaviors and recovering law and orders, the most fundamental purpose is to keep the rule of law. In regard to state tort liabilities, the rule of law means that the rights of people are protected and that no government body is allowed to violate the rights, first and foremost. Second, any citizen who suffers damage caused by government power is able to claim damages against the state, and, by doing so, recover one's legal state and/or receive due compensation. Third, it also warns public officials not to violate the law or not to act against the law, otherwise they may be responsible for indemnification due to state tort liabilities. Simultaneously, it also gives public officials a message that they are allowed to execute the law with conviction since the government holds the responsibilities for compensation. At the center of such discourse is interpretation and application of ordinances, which must be understood by everyone. Therefore, the State Compensation Act does not cover those rules that are not enacted and promulgated by due process, such as social norms or legal interpretations. For the same reason, administrative rules are also not included in the ordinances of the State Compensation Act.