행정입법의무의 불이행으로 인해 소규모 소매점에 대한 접근권이 제한된 지체장애인에 대한 국가배상책임의 인정 여부

Supreme Court en banc Decision 2022Da289051 decided December 19, 2024 (hereinafter the “subject case”) determined that the State should pay the consolation money to them as the liability of the State to compensate for damage caused to them on the grounds that the right of disabled persons to access was infringed due to illegal untrue administrative legislation nonfeasance. The subject case is significant in that it is the first precedent in many ways. The subject case first recognized the right of disabled persons to access as the fundamental right that is not enumerated in the Constitution of the Republic of Korea and was the first decision which admitted the liability of the State to compensate for damage arising from the nonfeasance of untrue administrative legislation. Furthermore, the subject case, by ruling that it should be considered that a claim for compensation from the State has significance as the most effective and practically the only remedy in controlling unlawful administrative legislation judicially when admitting the consolation money under the State Compensation Act, emphasized the judicial control of the State Compensation Act. As a result, the subject case can be evaluated to have opened the possibility for institutional reform through state compensation lawsuits by determined that the consolation money, equivalent to KRW 100,000, should be paid to each Plaintiff, who is disabled. This article analyzed the main issue dealt with in the subject case as follows. (1) First, whether the nonfeasance of administrative legislation at issue in this case is determined to be unlawful is examined. As a review of the nature of the right infringed thereby to examine the illegality of administrative legislation nonfeasance is required, the nature and details of the right of disabled persons to access in question in the subject case and whether the right may be recognized as the fundamental right under the Constitution of the Republic of Korea are examined. And then whether the nonfeasance of administrative legislation of the Rebpulic of Korea, the Defendant, is unlawful in this case according thereto is reviewed after examining the standard of determining the illegality of administrative legislation nonfeasance. In sequence, whether the liability of the State to compensate for damage arising therefrom on the premise of unlawful administrative legislation nonfeasance may be constituted is examined. For the sake of such review, first of all, (2) the intention or negligence of public officials as the constituent element of the liability of the State to compensate for damage and the “loss of objective justification” as the standard for determining the illegality of the state compensation liability are examined. This is relevant to the nature of the liability of the State to compensate for damage, and thus a review on the nature thereof is also made. Even though acts conducted by the State are deemed unlawful under public law, whether additionally reviewing the illegality thereof under the State Compensation Act is reasonable and how the requirement such as the loss of objective justification works in this context are also examined. Next, (3) the causal relationship between the State’s unlawful administrative legislation nonfeasance and damage alleged in the subject case is reviewed. In this process, what the Plaintiffs could claim through “proactive remedial measures” lawsuit introduced under the Act on the Prohibition of Discrimination Against Persons with Disabilities and Remedy Against Infringement of Their Rights is examined. Meanwhile, the Supreme Court viewed that “the protection of private interests in the course of duty” is required as a requirement to admit the causal relationship, and, due to the above requirement, the liability of the State to compensate for damage is not recognized in relation to the Plaintiff without a disability. Lastly, (4) whether there can be seen to have been any mental distress sufficient to admit the consolation money with regard to the issue in the subject case and the scope of the consolation money are reviewed. Particularly, special elements that should be considered when admitting the consolation money in terms of the nature under public law of the liability of the State to compensate for damage are examined. In light of the foreign examples which recognized the so-called “nominal damages,” a review as to whether there is any room to reinforce the judicial control over unlawful acts conducted by the State by recognizing damages to the similar effect even in the Republic of Korea is made. This article, through such examination, analyzes the impact of the subject case on legal discussion related to the protection of the right of the persons with disabilities to access and administrative legislative duties and presents implications for legal issues surrounding the improvement in the accessibility regulations of the persons with disabilities in the Republic of Korea and the scope of the liability of the State in the future.