부작위로 인한 국가배상책임에서의 위법성과 과실 - 대법원 2020. 5. 28. 선고 2017다211559 판결을 중심으로 -

Abstract

The Supreme Court Decision No. 2017Da211559, Decided May 28, 2020(hereafter “Decision”) recognizes the state's liability due to the omission in the acts of duty by military officials who failed to prevent suicide. With the frequent occurrence of large-scale disasters, including infectious diseases, the state's responsibility to protect the lives, bodies, and properties of its citizens is garnering attention. This article examines the important issues related to the criteria for judging the state's liability due to omission. The core of the illegality judgment is the state’s legal duty to act. The Decision recognizes the duty to act, asserting that there exists an duty of the state to eliminate risks to citizens' lives, bodies, and properties, even if there is no formal legal provision. Notably, it derives the duty of commission by considering in detail the administrative regulations. In Supreme Court precedents, there are two approaches to deriving the duty to act: One is based on the "unreasonableness of non-exercise of authority" and this applies when discretionary provisions exist. The other one is "the severity and urgency of the damage, the foreseeability and avoidability by the relevant public officials" and this applies when there are no formal legal provisions. The latter approach requires a more concrete consideration of individual conditions, given the potential for excessive judicial discretion in the former. Additionally, unlike in Germany, there is no explicit provision requiring protection of private interests in South Korea, but some argue this is necessary to limit the state's responsibility towards third parties, and precedents generally require the protection of private interests. However, in cases like the Decision, where the duty of action is not specified in legislation and involves interests such as life, body, and health, precedents often omit or do not make judgments on the protection of private interests. A significant aspect of the negligence judgment in omission is that the criteria for negligence, such as foreseeability and avoidability, are already included in the illegality judgment, which is a premise for deriving the duty to act. Therefore, in precedents related to state liability for omission, there is a tendency to judge illegality and negligence simultaneously. The Decision also states that if the duty of action can be derived based on the recognition of foreseeability and avoidability, negligence can be recognized without separate judgment. Thus, the judgment of foreseeability and avoidability becomes the most critical issue. Additionally, a review of the trend towards the objectification of negligence should also be considered.