郵便配達事故로 인한 國家의 損害賠償責任

An interesting issue of whether losses caused to the sender of the post by the postman’s willful or neckless non-delivery can be recovered by way of the application of Korean civil code’s general damages law, rather than the Postal Service Act restricting the liability to limited amount of money within short period of limitation, has recently been dealt with in some cases by the Korean Supreme Court. The Korean Supreme Court has applied Korean civil code’s damages law and the state’s vicarious liability based on a special statute, the State Compensation Act, to such cases as the non-delivery of civil proceeding documents through postal services (28 February 2008 and 23 July 2009 decisions of the Supreme Court). This article gives a critical assessment of a Supreme Court “2006다81325” decision, which was announced on the same day, 23 July 2009, as the abovementioned decision related to non-delivery of procedural documents. The claimant in the case claimed damages for consequential losses which accrued by the non-delivery of a registered post: the registered post was sent so as to notify the recipient of the termination of an insurance policy with resolutory condition, which, however, could not occur owing to non delivery; as a result, the claimant was thereafter actually exposed to the risk of being obliged to pay the recipient the insured amount, which the claimant in turn sought to recover against the postal service provider, the state. The Supreme Court held that such losses were beyond the foreseeability of the service provider, thereby damages sought being denied; that being said, it held that immaterial losses such as stress could be recovered in the case where the postman in question did not delivered the post willfully or gross-negligently. In this article, in comparision of Korean civil code’s damages law with German and English law, by both of which Korean civil code’s damages law has been influenced, the following criteria are suggested to govern such cases. First, issues of liability which accrues from the non-delivery of registered posts are within the ambit of the Postal Service Act in that this Act aims at restricting contractual liability to limited amount of money, whereas the delivery of civil proceeding documents has nothing to do with contractual postal service, meaning that their non-delivery directly triggers damages based on tort. Secondly, general damages law is however to be relied on, by way of the teleological interpretation of the said Act, in the case where postmen donot deliver posts willfully or recklessly. Thirdly, the consequential losses which accrue from non-delivery of the information contained in the posts, nevertheless, cannot be covered from the universal postal service provider in that the service provider donot intend and contract to cover such risks. In other words, such losses are beyond foreseeability of the universal postal service provider. Fouthly, whereas psychological pains or stresses which accure to the sender from the willful or reckless non-delivery of posts maight be compensated in relation to consumers or small businesses, who may be unable to effectively cope with such non-delivery, the said compensation cannot be given to companies in that they cannot suffer psychological stress, on the top of which companies are aware of the risks innate in the universal postal service and able to cope with such risks, meaning that they are not deserving of such damages.