국가배상법의 기능변화와 전망

The Supreme Court's decision of August 30, 2018, 2018Da212619, addresses the question of whether state compensation is available to those who were arrested, prosecuted and convicted of violating Emergency Measure No. 9, which was issued under the 7th amendment Constitution(‘Yushin Constitution’). The Supreme Court changed its precedent and ruled that "a series of state actions from the issuance of Emergency Measure No. 9 to its application and enforcement, taken as a whole, can be evaluated as unlawful because the officials neglected their objective duty of care in executing their duties and their actions lost their objective legitimacy, and state compensation liability can be recognized for damages suffered by individual citizens as a result of being forcibly investigated, convicted and sentenced as a result of the application and enforcement of Emergency Measure No. 9." Against the majority opinion, two separate opinions were presented: the state liability for the issuance of emergency measures by the president and the state liability for the trial by a judge could be acknowledged. It can be evaluated that the target decision presented the standard of ‘objective justification’, which was previously used as a logic for limiting liability, as a general standard for recognizing liability, including a kind of expansion of liability. After reviewing the existing discussions on the basis of the decision, this study examines the legal theory underlying the case comparatively in French, German, and English law. Furthermore, this study examines the scope of the case law and whether the liability of the president and judges raised in the separate opinions can be recognized independently. This decision is significant in that it demonstrates the characteristics of the public law liability system, which provides a basis for understanding state compensation by shifting from the existing subjective subrogation responsibility to the state's own responsibility. Due to this precedent, the element of subjective liability in establishing state compensation will be significantly relaxed in the future. The task for the future will be to ensure that the amount of compensation is determined at an appropriate level from the perspective of the taxpayers of the country as a whole, who fund the system, i.e., from the perspective of an insurer. The level of administrative compensation, which is determined from the perspective of legal equity, may be a guide. The decision adopts a somewhat controversial approach to the issue, which has made it more controversial, but I think it reaches a compromise but correct conclusion. It would be politically unreasonable to ask judges to retroactively implement the Radbruch’s formula, which states that "The positive law, secured by pronouncement and power, takes precedence even when its content is unjust (ungerecht) and fails in its purpose of benefiting the people, unless the conflict between positive statute and justice reaches such an intolerable degree that the statute, as 'flawed law (unrichtiges Recht)’ must yield to justice" This is a choice that would be a major blow to the neutrality of the courts.