국가·지방자치단체·감독자의 직접 손해배상책임에 관한 연구: 미국 연방법에 따른 경찰 사례를 중심으로

Abstract

In order to file a suit under State Compensation Act in Korea, a plaintiff must prove that public officials or private persons entrusted with public duties inflict damage on other persons “by intention or negligence” in performing their official duties in violation of the statutes. The Constitutional Court of Korea has confirmed that the requirement of public officials’ intention or negligence in State Compensation Act does not violate Article 29 of the Constitution of the Republic of Korea. In the recent two tragic incidents of Itaewon and Osong, state government and municipalities’ inadequate policies and customs as well as lack of training are the moving force of the violations of victims’ rights rather than individual police officers and public officials. Nevertheless, the estates and victims of the incidents must rely on individual public officials’ intention or negligence in order to successfully win their case under State Compensation Act. In contrast, the Civil Rights Act of 1871, 42 U.S. Code Section 1983 allows plaintiffs to file a suit against municipal entities when their constitutional or federally guaranteed rights are violated by unconstitutional policies, customs or practices as well as lack of training or supervision. Furthermore, the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S. Code Section 14141 allows government authorities to review the practices of law enforcement agencies that violate citizens’ constitutional rights. In this regard, the present study, analyzing the parliamentary audit and inspection report on the Itaewon incident, proposed several policy implications for the revision of State Compensation Act by allowing plaintiffs to directly sue state, municipalities, policymakers and supervisors.