행정처분의 취소소송과 국가배상소송의 관계 ― 취소소송 미제기가 국가배상책임의 배제사유가 될 수 있는지를 중심으로 ―

Re-establishing state liability from ‘civil vicarious responsibility’ to ‘public self-responsibility’ and not requiring ‘subjective negligence of public official’ or ‘loss of objective legitimacy’ will likely expand the scope of state liability. Particularly, in cases where a state compensation lawsuit is filed immediately without a revocation suit, it is necessary to review the impact of non-filing of a revocation suit on state compensation to appropriately adjust the scope of state liability recognition from a national financial perspective. This article examined the legal principle of Article 839(3) of the German Civil Code, which explicitly stipulates non-use of legal remedies as a reason for excluding state liability. In cases outside of Germany, this article examined legislative and case law examples from the EU, UK, Canada, Austria, Poland, France, Estonia, Switzerland, and Italy regarding whether a revocation suit is considered a prerequisite or a mitigating reason in state compensation lawsuits. Based on this comparative legal review, the following prerequisites are presented for introducing non-filing of a revocation suit as an independent exclusionary reason under our state compensation legislation: ① introduction of exclusionary reasons as a special standard for contributory negligence, ② limiting the scope of exclusion of state compensation to the extent related to the causal relationship with non-filing of a revocation suit, ③ setting a level of culpability for the victim's failure to file a revocation suit that can adjust so as not to unjustly restrict the right to claim state compensation for citizens who could not file a revocation suit against an unlawful administrative disposition, ④ enhancing predictability of the introduction of exclusionary reasons by the administrative disposition notification process, and ⑤ excluding ‘dispositions with litigious nature’ from the scope of exclusionary reason of state compensation.