정신질환자의 범죄에 대한 국가배상책임: 국가배상에 관한 대법원 판례를 중심으로

As social interest increases due to frequent violent crimes of mental patients, the legal necessity of rescuing victims who suffered damage due to their crimes or illegal activities is also raised. However, in the case of mental patients, they cannot be held liable for damages because of their lack of intellectual ability to recognize liability. And if they are adults, liability can be denied because there is no one obligated to protect and supervise them. Moreover, even if they are recognized to be responsible, most often they do not actually have economic resources to compensate for the damage. In such a case, the victims try to compensate for their damages by holding the state agency responsible for not properly coping with the perpetrator’s mental illness. Public officials who should strive to ensure the safety of citizens neglected their duties by not actively responding to mental patients, which eventually resulted in death or injury, so the state should compensate for this damage. In these cases, the court determines compensation for damages in accordance with the theory of “adequate causal relation(adäquate Kausalität)”, which is the dominant view of Korean civil law. On the grounds of “adequate causal relations”, our court is stingy about acknowledging the violation of public officials’ duties. The difficulty in sufficient compensation for the victim is that the direct cause of the damage is not a violation of the duties of public officials related to the safety of citizens, but a crime or tort of a third party. If compensation is recognized, the victim can receive sufficient relief, but if not, he or she can only receive a statutory amount of relief money regardless of the damage incurred within a limited range. This reality should be improved. Mental illness can also be said to be a kind of social risk, and these risks must also be socially managed. Who will manage these risks will be found through specific interpretation of the relevant regulations, but the ultimate management entity is bound to be the state. Although negligence (or liability for faults) is not recognized, a compensation system such as a kind of strict liability or “Gefährdungshaftung(liability for dangerous)” system is needed to cope with such problems.