국가배상법상 공무원

Abstract

Since the right to claim compensation from the State is not a simple right to claim damages under civil law, but one of the fundamental rights under the Constitution, the State is fulfilling its constitutional obligations when it compensates victims for damages caused by illegal acts by public officials. Therefore, state compensation liability is the self-responsibility of the State based on the organ theory, and since the parties to the state compensation relationship are the State and the people, Article 2, Paragraph 1 of the State Compensation Act, which demands intentional or negligent public officials who are not parties to the state compensation relationship should be revised as soon as possible. As such, since the establishment of a public official’s personal liability for compensation is not a prerequisite for the establishment of State Compensation Liability, the Supreme Court’s position should be changed as follow that if the public official falls under light negligence the public official’s personal liability for damages does not exist : If a public official commits an illegal act against another person in the status of a natural person regardless of the performance of duties, the liability for compensation is recognized regardless of gross negligence or light negligence according to Article 750 of the Civil Act. However, if a public official commits an illegal act against another person while under the guise of performing duties, the public official at this time corresponds to an organ or tool of the State, and therefore the public official does not bear personal liability for compensation, only the State. Meanwhile, in relation to state compensation, a public official functions only as an enforcer, so it is not at all important whether the public official has legal subjectivity or is in charge of purely technical enforcement. Therefore, public officials under the State Compensation Act may include not only those who have the status of public officials but also public trustees and administrative assistants. However, public corporations established to handle special public administrative affairs, such as public organizations, cannot be included in the public officials under the State Compensation Act. In this regard, the Korean Bar Association is a public official under the State Compensation Act as an public trustee, therefore only the State that entrusted the lawyer management work to the Korean Bar Association is recognized as liable for damages, and there is no reason to discuss the liability of the Korean Bar Association or the President of the association.