군복무자의 재해보상청구권에 대한 헌법적 고찰

Abstract

Article 29 (2) of the Constitution of the Republic of Korea and the State Compensation Act prohibit the state compensation claims if soldiers are compensated for disasters that occur while performing their duties. On the provision, the judiciary interprets it as prohibiting compensation claims regardless of the level of compensation. However, considering the legislative background, basic rights system, and legal confusion, it should be deemed as prohibiting the compensation claim based on the just compensation, which would be consistent with the purpose of the Constitution, not as prohibiting the compensation claim regardless of the contents of compensation. Further, in consideration of the causes and ideologies of state compensation for loss and state compensation for accident, it is unfair to equate the characters of both. If a disaster occurs due to a defect in the command system or military equipment, military facilities, etc., it means that compensation for the loss would replace the compensation for accident, not means that compensation is prohibited for the loss caused by the external factors. If the just compensation is guaranteed for restrictions on property rights, it is a natural logic that the just compensation is guaranteed for the sacrifice of life and body that is a superior value. In addition, Article 29 (2) of the Constitution is a regulation established to resolve the competition between compensation for the loss due to performance of duties and compensation for accident, and should be interpreted as the intention of replacing a claim for compensation for accident with the just compensation. The compensation of the Military Accident Compensation Act at the level of consolation money cannot be regarded as the just compensation. The compensation of the National Meritorious Persons Act, which supports only some of the soldiers who suffered from the disaster, is also contrary to the just compensation, in that the Act interprets that the level of compensation cannot be argued as the compensation is deemed to be legislative discretion. The fundamental solution to this problem is to enact compensation legislation that guarantees the just compensation corresponding to sacrifice. It is possible to consider introducing accident compensation insurance for military service personnel and applying the Industrial Accident Compensation Act to them at the average salary level of public officials. It is also possible to consider improving the veterans' welfare system, such as the National Meritorious Persons Act, to the just compensation corresponding to the level of sacrifice. In that case, the disaster recognition system under the Military Accident Compensation Act and the National Meritorious Service Act should be unified. Among the accident occurred during the service performance and the accident correlated with the public service, it is reasonable for the state to bear the burden of proof to identify the correlation of the accident with public affairs, considering that the accident occurred during the military duties that had been disposed by the state. Providing compensation for sacrifice, rewards, and courtesy under the veterans’ welfare system through separate national compensation laws can eliminate the issue of equity with other professional public officials. This study identified that the essence of the military service personnel’s right to claim accident compensation is their right under the State Liability Act for the sacrifice of life and body caused by the action of public power for public interest purposes, and suggested a plan to improve the current compensation system. Regardless of the compensation method, it clearly mentioned that the just compensation should be guaranteed to harmonize with the state's liability for compensation for damage caused by risk-taking for the protection of the nation and the people under the Constitution.