프랑스 국가배상책임제도에서 위법성과 과실의 관계

Abstract

State liability in France is very unique from the comparative perspective. The originality can be summed up in three sentences. Firstly, it is governed by autonomous rules different from that of civil law and made by the Conseil d’Etat. Secondly, in order for the public body to be held responsible, there must be a faute de service. Lastly, if an administrative decision is illegal, this illegality automatically constitutes a faute de service. There are a faute personnelle and a faute de service. The former is a personal fault which gives rise to the liability of the individual servant, whereas the latter makes the public body directly responsible. As long as the faute personnelle maintains some link to the service, it can also be acknowledged as faute de service. Rule out those fautes de service, there remains the faute de service in a strict sense. The faute de service proprement dite is understood as a malfunctioning of an administrative machinery or a defect in the organization of the administrative service. This notion of fautes de service proprement dites makes possible the rule that “illegality entails fault.” The Driancourt decision issued in 1973 was a turning point for this rule to be formally accepted as jurisprudence of the Conseil d’Etat. It removed the last remaining barrier by declaring that the illegality of an administrative act, even if it is attributable to a mere error of assessment, constitutes a fault which can make the public body responsible for the act. However, even though the illegality constitutes fault, it does not necessarily mean that every illegality systemically gives rise to state liability. Other elements such as prejudice and causal link should also be satisfied. Illegality entails only simple faults. In areas of state liability where the faute lourde is required, mere illegality is not enough to condemn the administration. When there is a third party contributing to the occurrence or expansion of damages, the administration is not liable jointly and severally. It is liable only for a portion of the total loss. These all play a role of limiting the scope of liability for fault. On the other hand, state liability in Korea is governed by the State compensation act. According to this Act, it is required that there should be an intention or negligence(fault)of public officials in performing their public service and that this performance is illegal. Further research is needed if the notion of faute de service, and the rule of the illegality-fault parity can be adopted in the Korean state liability system. Meanwhile it would be safe to comment on two things. Firstly, if an administrative decision is quashed as illegal by the appeal litigation, by the authorité de la chose jugée, this act must be regarded as proven illegal in the liability action. Courts can limit excessive grant of liability by grading implicitly the degree of fault in the individual cases. Secondly, in spite of the provisions of the Civil Act, there may be a possibility for the administrative bodies to be granted several liability by the Supreme Court.