행정부작위와 국가배상책임의 구조적 해석

Recently important cases on the tort liability of the state are ones which people had been damaged almost by the nonuser of the authority to the state. For instance, there are Red-light District Fire Case in Gunsan and Mini-cup Jelly Case. The Nonfeasance in the state compensation act happened in the administrative power, legislative power and judicial power. Actually, every lawsuit was brought on the nonfeasance of administration. In order to affirm the tort liability of the state from the Administrative nonfeasance, plaintiff must prove material facts in the state compensation act like active use of authority. The problem awaiting solution is the legally consistent, structural analysis in the state compensation act. This thesis tried theoretical, practical legal demonstration in the below by the universal approach based on the past researches, originating from the critical mind in the above. First of all, the problematic phase of nonuser of the administrative authority is on the discretion and it historically reviewed tasks to overcome according to two categories: a type of nonuser of authority to control and other of direct infringement. Besides, it compared, through a doctrine and case laws, the theory of shrinking discretion with one of passive misuse of the right to discretion as the derivative, legal theory on the violation of duty of feasance (illegality) as the core of the administrative nonfeasance. What is more, it also analyzed that both theories in the above are complementary. Especially, material facts of specific duty of feasance are developed by Japanese doctrine and case laws of lower courts, introducing Germany theory of shrinking discretion in the judge of illegality of the administrative nonfesance. It also demonstrated that the material facts in the above are useful legal theory and they are partially introduced in the practice. Second, this thesis analyzed that legal interest is a factor of damage, based on the essence of definition on the illegality, causation and damage, on the necessity to apply ‘legal interest’ (the nature of the safeguard of the private interest) and its position in the functional aspect to decide the scope of protection in the state compensation system as there is a confusion in the debate on those, including doctrine and case laws: the applicability of legal interest on the standing in pleading in the action of the state compensation from the nonfeasance and its position. The demand of the nature of the safeguard of the private interest in the suitable statues is, first of all, the standard to decide whether it is within the scope of protection in the state compensation system; second, it is involved with the scope of legal protection as the relief in the specific case. Through the construction of legal theory in the above, it universally interpreted legal interest as a factor of damage. Third, the specific factor on the relation, in the administrative nonfeasance, between negligence and illegality in the theory of shrinking discretion is consequently the same as one of the theory of passive misuse of a right to discretion. Thus, this thesis reviewed whether universally understanding both theories in the above in considering foreseeability, avoidability, and etc implicated as a specific factor is legally reasonable. This thesis also would provide the hint for further research on the tort liability of the state from the administrative nonfesance. For example, the definition of illegality in the between pleading like affirmative action on the illegality of the nonfeasance and the administrative nonfeasance is different. Besides, the definition of legal interest in introducing the theory of legal interest in pleading on the tort liability of the state from the nonfeasance is different in the both fields.