일본에서의 국가배상법상의 행정지도 부작위 위법책임에 관한 소고

Abstract

Administrative guidance in Japan and Korea, which acts as a powerful means of administrative cases, despite having administrative guidance of randomness based on the “public power events” does not look as illegal as a result, the damage has occurred due to administrative guidance, even the relief was very modest. Administrative guidance, especially in Japan, the “Force of virtually” administrative guidance based on the recognition of responsibility for the omission offense doctrine and case law surrounding a lot of debate has been made over. This traditional Japanese court for the judgment on the basis of ① discretion urgency of the risk, ② predictability, ③ avoid the possibility, ④ subsidiarity, ⑤ people's expectations, such as “five requirements” of administrative guidance based on the judgment of the acts and obligations characteristics that have been shown. Recently, however, the court of Japan responsible for omissions illegal “Judgment based on the reason” on the basis of administrative guidance and evaluation of the occurrence of any act of duty and characteristics that determine its illegality has shown. Thus, recently, Japanese courts are more important than previously the interests of the people affected by the administrative guidance. Legal judgment that was previously based on the “judgment of discretion” is, has been difficult assess the accountability of government in the area of ​​administration involved with health and life of the people in particular. There will be face to suggest to Korea judgment of the court of Japan recently.