국가의 손실보상법에 관한 비교법적 고찰 - 독일과 한국의 비교를 중심으로 -

Abstract

The loss compensation acts in Germany and Korea are similar in basic respects, but different parts are found in specific applications. Germany has applied the ‘expropriation-equal infringement(enteignungsgleicher Eingriff)’ to compensate for the void in legal principles for illegal and irresponsible infringement, and the ‘expropriable infringement(enteignender Eingriff)’ legal principles have been applied to property rights restrictions that appear as an atypical side effect of legitimate administrative action. Germany has elaborately developed the loss compensation act through the victim compensation claim(Aufopferungsanspruch), advanced since the 18th century in the philosophy of natural law, the right to claim the elimination of results, the right to claim damages based on the administrative legal claim-obligation relationships, the right to claim the compensation based on the management of administrative affairs, and the right to claim the reimbursement under public law, in addition. Unlike Germany, Korea does not recognize ‘expropriation-equal infringement’, ‘expropriable infringement’, and other claims, and unlike Article 14 (3) of the Basic Law for the Federal Republic of Germany, which stipulates ‘expropriation’, Article 23 (3) of the Korean Constitution additionally stipulates the ‘use or restriction of property rights by public purpose. It could not be applied indiscriminately as the legal principles such as expropriation-equal infringements, expropriable infringements, and the victim compensation claim developed in Germany are not perfect theories, however. It is not necessary to accept these claims as the right to claim damages based on the administrative legal claim-obligation relationships and the right to claim the compensation based on the management of administrative affairs could be resolved through the application of civil law regulations, and the right to claim the reimbursement under public law could be settled by the principle of general unfair profits, in addition. The recent side effects of the COVID-19 vaccine are an opportunity to develop discussions on vaccination damage compensation as the compensation by the State. Germany has resolved the damage compensation for vaccination through the right to claim sacrifice compensation. Korea does not recognize the right to claim sacrifice compensation, but seeks to compensate for vaccination damage through Article 71 of the 「Act on the Prevention and Management of Infectious Diseases(abbreviation: Infectious Disease Prevention Act)」. Since the scope of vaccination damage compensation is narrow, the cause-and-effect relationship should be alleviated in the future, and it is required to prepare specific vaccination damage compensation standards and add compensation methods through pension receipt in the 「Infectious Disease Prevention Act」 and Enforcement Decree of the same Act.