공무원의 불법행위로 인한 국가배상책임의 본질 및 요건에 대한 재검토 - 대법원 판례들의 분석과 평석을 중심으로

Government liability system is both constitutional fundamental rights of citizens and administrative remedies to realize the principle of the rule of law. Constitutional law Article 29 stipulates reimbursement claims about the country's citizens and State Compensation Act stipulates refine it. According to Article 2 National Compensation Act, requirements to establish a national indemnification liability due to illegal activities of officials are ① public officials or private persons entrusted with public duties in performing their official duties ② in violation of the provisions of Acts and subordinate statutes ③ by intention or negligence ④ inflicting damage on other persons. Among the above requirements, ② in violation of the provisions of Acts and subordinate statutes, the illegality, and ③ intention or negligence are crucial requirement to determine whether the establishment of a national liability . On the contrary of such a simple regulation About the requirements of the country due to tort liability of public officials, there have been many discussions about the criteria which consists of the illegality and intention or negligence in still divided opinions. It is not a desirable situation that court does not provide a consistent interpretation criteria Given the importance of Government liability system as Administrative remedies and fundamental rights of citizens. public official in Article 2 National Compensation Act make state be responsible for his illegal acts. On the other hand, he is Not responsible for it if he has only mild negligence. That is why concept or the scope of the "official" is very important. From before Supreme Court came to understand the meaning of public officials' in the functional sense. It did not confine to only those with a status as public official based on the PUBLIC OFFICIALS ACT and admitted widely to those who are actually engaged in public affairs taking charge the public service. By the way, recently the Supreme Court recognize Korea Land Corporation Acting administrative vicarious execution on behalf of the authority as administrative subject authorized the administrative agency by decree and exclude it scope of the "official" in Article 2 National Compensation Act. This decision raises questions on range of the "official" in Article 2 National Compensation Act and Whether private company or public institution is also responsible for its employee's torts under National Compensation Act. Next, Supreme Court's judgment regarding the 'illegality' has not been consistent, so interpretation on the standard of court also varies. Because inconsistent standard can not give trust on the courts, there needs to be a unified standard of the Supreme Court.