행정입법부작위와 국가배상책임 - 대법원 2024. 12. 19. 선고 2022다289051 전원합의체 판결에 대한 검토를 중심으로

This article analyzes the Supreme Court decision of December 19, 2024 (2022Da289051), with a focus on whether legislative inaction by the executive branch specifically the failure to amend subordinate legislation can give rise to state liability under Korean tort law. The case involved plaintiffs with disabilities who claimed that their right of access was infringed due to the absence of accessibility facilities in small convenience stores. They argued that the government’s failure to revise the relevant enforcement decree, which had not been updated since its enactment in 1998, constituted unlawful legislative inaction. As a result, over 95% of convenience stores were exempt from accessibility obligations. The Supreme Court acknowledged that the right of access for persons with disabilities is a constitutional right and found that the prolonged failure of the state to amend the enforcement decree despite its obligation to do so was unlawful. The Court further held that this inaction had lost its objective justification, thereby giving rise to state liability. Notably, the Court reaffirmed the criterion of “loss of objective justification” in assessing illegality and awarded 100,000 KRW in damages to each plaintiff. This article critically examines the reasoning of the Court and explores how legislative inaction should be evaluated under the requirements of Article 2 of the State Compensation Act, particularly the elements of “intent or negligence” and “violation of laws or regulations.” The paper argues that the “loss of objective justification” test is not a normatively appropriate standard from a public law perspective and should not be misunderstood as a mere transposition of private law principles such as employer liability. To support this view, the paper presents the Constitutional Court’s distinction between true and quasi legislative inaction and explains the implications for remedies. Prior decisions such as the 2006Da3561 ruling are also analyzed to trace the evolution of case law on legislative omissions. Additionally, the paper introduces relevant Japanese jurisprudence and theory to provide comparative insight. While a concurring opinion in the case acknowledged longstanding academic critiques of the objective justification test, the ruling overall appears to reinforce it as a settled doctrine. This raises concerns about the normative validity and necessity of maintaining such a separate requirement. Although the Court did not sufficiently differentiate between true and quasi-legislative inaction in its illegality analysis, the decision is significant in that it recognizes, for the first time, state liability for quasi-legislative inaction. As such, it affirms the judiciary’s role in remedying constitutional rights violations in a legal system where there is no easily accessible remedy for executive legislative inaction. The ruling therefore has great significance as both a normative control mechanism and a practically effective means of judicial relief.