국가배상법 제2조의 국가배상책임에 관한 최근 대법원 판례의 동향 - 국가배상의 성질과 위법성을 중심으로

In modern administrative states, instances of infringement on individual rights caused by administrative actions are increasingly frequent. In this context, the significance of the state compensation system as an effective remedy for such infringements is receiving growing attention. The Constitution of Korea and the State Compensation Act stipulate that the state or local governments shall bear liability for damages under certain conditions when a public official causes harm through unlawful conduct in the course of duty. However, the application of these provisions in actual cases has largely relied on Supreme Court case law. In particular, the legal nature of state liability and the concept of “illegality” a key element for establishing liability remain abstract and have been concretized primarily through judicial interpretation. This article aims to critically analyze recent Supreme Court decisions concerning the nature of state liability and the concept of illegality, and to propose improvements based on these findings. First, it examines the existing theoretical frameworks namely, the theories of state self-responsibility, vicarious liability, and the hybrid theory and analyzes how the Supreme Court has adopted and interpreted these theories, with a focus on recent en banc rulings that indicate a shift in the Court’s stance. Second, it investigates the structure and limitations of the illegality assessment in case law, particularly focusing on the criterion of “objective justification”. The article suggests understanding illegality as a violation of official duty by public officials, thereby clarifying the meaning of “objective justification” as used in the case law. It also critically assesses the phenomenon in which this criterion, originally intended to broaden the scope of remedies, is instead being used to narrow the state’s liability. Third, the article examines the nature of state liability and the criteria for illegality in cases involving omissions, in light of the aforementioned discussions. Through this analysis, the article elucidates the relationship between the legal nature of state liability and the requirements for its establishment, and explores the doctrinal implications and limitations of the case law. Ultimately, it argues that in order for the state compensation system to function effectively as a means of ensuring lawful and responsible administrative action, its interpretation must be firmly grounded in public law. This approach, in turn, will enhance the effectiveness of remedies for individuals and establish a legal foundation that balances public accountability with the public interest.