형사보상에서 국가배상법의 구상권 규정의 준용 필요성

Abstract

If an individual has been wrongly convicted on the grounds of a tort carried out by a public servant, that individual can either apply for Criminal Compensation or State Compensation, defined in their respective acts. However, if the wronged individual first applies for Criminal Compensation then later files for State Compensation, or if the individual applies only for criminal compensation, the state cannot exercise its right to indemnity as set out in the State Compensation Act, because the act states that such rights can only be applied to compensations paid by the State Compensation Act. The result is that choices made by individuals can result in not only losses for the state but also reflective benefits for those public servants who would otherwise have been subject to indemnity. As there exist cases where wronged individuals apply only for the more easily argued and proven Criminal Compensation, a solution is necessary. As the State Compensation Act assumes the state itself is responsible for the tortious actions of its servants, it can be said that legally there is no basis for the government to hold the right to indemnity. However, such a right was implemented to suppress the abuse of power and also to support active performance of governmental duties by stating that this right can only be exercised in case of gross negligence or deliberate intent. The Criminal Compensation Act also assumes the state is responsible for the damage caused to wrongly convicted individuals yet does not state the existence of a right to indemnity. To solve this legal gap, it is necessary for the Criminal Compensation Act to also regulate the right to indemnity. The actual content of this right should simply be an application of that of the State Compensation Act. As in the case of French Criminal Procedure, it is possible that the state could hold the right of indemnity towards those who provide false witness, bring false charges or otherwise distort criminal justice. However, the difference in French and Korean evidence laws as well as legal and historical backgrounds means such regulations would be inappropriate. As the purpose of introducing such rights to indemnity would be to encourage the proper execution of governmental affairs and to deal with the existing legal gap, the proper solution would be to simply apply the right to indemnity as provided in the State Compensation Act to the Criminal Compensation Act.