국가배상법상 위법성에 관한 소고 - 제2조의 위법·과실요건을 중심으로 -

The objective of the Article is to discuss a longstanding scholarly controversy on the illegality requirement of Article 2 under the Korean State Compensation Act and other related issues, including its relationship with negligence. Its discussion can be summarized as follows. First, the notion of illegality under the State Compensation Act should be distinct from its civil law concept, and the theory of its broad concept, based on the national duty to respect human rights and other fundamental personal interests, is the most appropriate view on the illegality requirement of the Act, compared to other theories. However, as far as administrative action, which is subject to administrative litigation, is concerned, the theory of the narrow concept on illegality, concentrating on the compliance of governmental action itself with applicable statutes and regulations, becomes essentially the identical approach. Furthermore, the two theories converge if the doctrine of proportionality and other constitutional law doctrines are applied with flexibility. The only difference is the distinct analysis of illegality and negligence under the latter. Second, all theories on illegality adopt almost the same approach in the case of government inaction. Third, the demonstration of negligence is a substantial obstacle to the recognition of governmental liability in many cases concerning administrative action. This is because case law requires extremely high standards of proof or applies relaxed standards of the duty of due care. The best solution is to revise the the State Compensation Act, but it cannot be a short-term approach in light of lack of its feasibility. Thus, the second best approach is to establish a stricter standard of the duty of due care and to relax standards of proof. Fourth, case law, which is heavily influenced by its Japanese counterpart, formulates the most stringent notion of illegality with respect to legislation and acts of judges and prosecutors. Although the justification for this position drives from the need for protection of legislation and justice administration from floods of lawsuits, it is desirable to articulate privileges and immunities by revising the State Compensation Act, while privileges and immunities are expressly enumerated in some limited categories of action. In conclusion, it is necessary to establish the same approach to illegality on the basis of the theory of its broad concept. The challenge is to realize individual justice by differentiating the approach with the focus on the peculiarities of the circumstance in real cases.