경찰손실보상에 관한 경찰법 도그마틱 - 쟁점 사례 분석과 제언 -

This paper aims to establish judgment criteria consistent with the police law theory by reviewing related regulations, such as the requirements for compensation for losses under the 「Act on the performance of duties by police officers」. It also explores issues crucial for determining whether there should be compensation and the scope of compensation for police losses in alignment with police law theory. The following conclusions can be drawn from this study: First, the constitutional basis for the police loss compensation system is Article 23(3) of the 「Constitution」. Accordingly, the loss compensation system is reflected in the 「Act on the performance of duties by police officers」. And the current compensation system allows individuals to receive compensation even if they are responsible for the losses of life, body, or property, provided the losses exceed their responsibility. Second, the police compensation system determines whether or not to compensate for the loss through the following step-by-step judgment process. ① Grounds for invocation of police duties. - ② Selection of a person with police responsibility. - ③ Assessment of the presence, scope, and degree of police action - ④ Determination of the legality of invoking police action - ⑤ Examination of the occurrence of loss of life, bodily injury, or property caused by a person not responsible for the loss or beyond the extent of their responsibility. - ⑥ Establishment of the causal relationship between police action and loss.. Legal execution of duties requires compliance with the principle of legal reservation and adherence to the principle of proportionality by police officers. Third, the principle of police responsibility is crucial for determining the object of police enforcement, especially in cases where the law's provisions governing the object of police enforcement are abstract or vaguely defined. Furthermore, the principle of police responsibility is an important criterion for determining whethert to compensate for losses and defining the scope of the compensation. Fourth, the controversial cases in loss compensation relate to the legality of police enforcement, apparent danger and the person responsible for the police, responsibility for the cause of the loss, and the scope of compensation for loss. In order to determine whether or not to compensate for police losses in these controversial cases, an interpretation and application consistent with the provisions of the police law Dogmatics and the 「Act on the performance of duties by police officers」 are necessary. In particular, for those who are apparently responsible for the involvement and action of the police, it is crucial to distinguish whether he is subject to police involvement and action in the first stage (the stage of invoking police involvement and action) and who is responsible for the cause of the loss in the second stage (the stage of compensation for losses). Also it is necessary to examine in which cases are object to compensation for losses under the 「Act on the performance of duties by police officers」 according to the specific situation. Fifth, it is essential to include both illegal and irresponsible cases, along with legal and responsible cases, in loss compensation. This approach broadens the scope beyond situations where police duties are clearly legal. In other words, the distinction system between administrative loss compensation and administrative damages is not absolute, nor is it advantageous for upholding the rights and interests of the people. Rather, broadening the scope of police actions subject to loss compensation enables active risk prevention measures for on-site police concerned about civil damages and criminal complaints.