국회입법상 불법에 대한 국가배상책임에 관한 고찰

Abstract

The State tort liability Act Article 2, paragraph 1, "State and local governments compensate for damage to others in violation of the laws intentionally or negligently entrusted with executive duties signed an official or public affairs, the state or local government requires a 'illegality' as one of the requirements of the liability by stipulates that When there are liability for damages shall be liable for the damage under this Act. However, there are difficulties in the issue of how the state liability for illigal legislation acts of National Assembly or National Assembly Member. In this regard the Supreme Court was clear position the State tort liability for illegal legislation of National Assembly on the 'Geo-Chang events' judgment. In other words, "National Assembly Member only become a political liability in relation to the whole nation principle with respect to legislation, not intended to be a legal obligation to respond to our individual rights, the Legislative acts of National Assembly Member, despite the wording of the legislation clearly violates the contents of this Constitution, the National Assembly was not a bother relevant special cases such as that legislation, the State tort liability Act to see that the second paragraph 1, corresponding to a given offense can not, "the Supreme Court was decided. And, the problem of the Government admit liability for legislative action that would depend on whether or not the fault of the National Assembly Member who enacted recognize unconstitutional laws. But since our the State tort liability Act adopts fault principle, there are limits that cope with theoretical analysis. Therefore, it is necessary the introduction of the "Legislative Impact Assessment" for preventing unconstitutional legislation. And It will be studi- ed legislative Plans such as the improvement of the State tort liability Act 2 of Article 2.