위법한 가압류취소결정에 대한 국가배상에 있어 효력정지 미신청이 책임배제사유가 되는지 여부 - 대법원 2022. 3. 17. 선고 2019다226975 판결 -

Regarding the state's compensation liability for illegal judicial decision, previous court precedents have shown that if the appeal process is not pursued, the state's compensation liability is limited. However, in the subject decision, it was determined that even if the appeal process was pursued by immediately filing an appeal, the state's compensation liability could be excluded if an application for suspension of execution was not made. In the field of international investment law, where the state's liability is actively contested in arbitral tribunal, the rule of finality applies. The rule of finality is about whether the responsibility of the state can be held in international investment arbitration only after going through all domestic appeal procedures. According to that rule, unless appeal procedures are exhausted, Even in the EU, where there has been active discussion on the violation of EU law by national supreme courts since the Köbler judgment, it is considered that the exhaustion of domestic remedies is necessary for the state's liability to arise. The basis for this is similar to the rule of finality in international investment arbitration, in that the state's liability in court arises when the judicial system as a whole fails to provide redress, and it is only through the parties' appeals that it can be determined whether or not there has been a failure of the overall judicial system. Under the court's hierarchical system, if a party does not appeal, the opportunity for such an appeal is eliminated as a result of the party's choice. Therefore, in cases where the appellant does not appeal, it is not confirmed that the "entire judiciary system" of the state did not provide an effective remedy, and the state compensation liability cannot be established. Therefore, failure to exhaust appeal procedure should be considered as not meeting the requirements for establishing the state's compensation liability, as it implies that there is no proof of the court's violation of obligation or illegality. However, the subject decision that there is no state compensation liability when ex officio examination is possible needs to be reconsidered. In cases where the court can conduct an ex officio review, even if the appellant does not appeal, the appellate court can review the trial. Rather, in the sense that the judicial system can be evaluated as imposing the duty to review ex officio, if an manifest breach is recognized, state compensation liability should be acknowledged more positively.