국가배상에 관한 주요 판례분석－ “법령위반(위법성)”을 중심으로 －

Abstract

According to the constitutional state principle, all administrative activities are expected to be legal. However, in reality, causing damages to the people by illegal administrative activities are inevitable. Therefore, in order to implement the constitutional state principle, devices that regulate illegal activities are required. Moreover, systems to relieve the damages caused by the illegal administrative activities are necessary, which can be represented by the government liability system. Article 2 of the Government Liability Act provides the conditions of government liability for governmental employee’s tort. Given that the government liability has the character of ‘tort liability’, illegality and intention/negligence are the key factors among the conditions. In particular, there are various opinions on the definition of illegality or the standard of judgment, which is described by a Japanese scholar an ‘extremely confusing situation’. This paper lays emphasis on the illegality problem among the conditions of government liability caused by government employee’s tort. First of all, the text of the law about the illegality of the administrative activities in Germany, Japan and Korea is considered, as well as its meanings. Then, following problems are considered: problem whether the essence of illegality in the government liability lies on the activity or the result; problem whether illegality in complaint lawsuit and illegality in lawsuit for government liability is the same; problem whether the protection of private interest of the law that imposes the obligations to government employees is related to illegality or the causality in the government liability. These problems will be considered mainly through the judicial precedents in Japan and Korea.