행정입법부작위에 대한 국가배상책임 - 대법원 2024. 12. 19. 선고 2022다289051 전원합의체 판결에 대한 평석을 겸하여 -

Recently, Supreme Court rendered a decision which recognized state liability for damages due to administrative legislative omission related to access right of persons with a disability. While the remedies for administrative legislative omission are not adequate, claims for state liability can be a supplementary, but practical methods of relief, which makes the decision of significant importance. This article aims to scrutinize meaning and limit of the decision by analyzing issues that were driven from the decision: the determination of legality of the administrative legislative omission, and the establishment of state liability. First, with regard to the determination of legality of the administrative legislative omission, the judgment acknowledged both administrative legislative discretion of government and its inherent limit by interpreting relevant statutes. In particular, intent and content of the enabling law, object and content of the delegation, the presence or absence of justifiable cause, degree of infringement on fundamental rights due to administrative legelative ommission are comprehensively considered. In terms of the intensity of review for determining illegality of administrative legislative omission, strict scrutiny is necessary considering the importance of access right of persons with a disability. In this regard, the conclusion that recognized the illegality of the administrative legislative omission of the decision is appropriate. Next, the majority opinion and concurring opinion in the judgment are different as to the establishment of state liability, which is closely related to the nature of state liability. The majority opinion, from the perspective of vicarious liability, holds that even if administrative legislative omission is considered as illegal by the court, the state liability may be denied when requirements of ‘loss of objective justification’ or ‘intent or negligence of public officials’are not met. In contrast, the concurring opinion holds that the state liability needs to be understood as a direct liability under constitution and it is not necessary to see whether these requirements are satisfied. Taking into account the nature of public law and function of state liability, the essential character of state liability should be viewed as direct liability. In particular, requiring ‘loss of objective justification’as a criterion for determining state liability can be critically examined. In this regard, while the conclusion of the court’s decision is appropriate, the concurring opinion needs to be focused in relation to its logical framework.