장애인의 접근권 침해와 국가배상책임 - 대법원 2024. 12. 19. 선고 2022 다 289051 전원합의체 판결에 대한 평석을 중심으로 -

The right of access for persons with disabilities is a constitutional guarantee of human dignity and equality, essential for individuals to live autonomously and participate fully in society. While Korean law and international treaties have mandated measures to realize this right, the Enforcement Decree of the Act on Promotion of the Convenience of Persons with Disabilities long restricted accessibility obligations for small retail businesses to spaces over 300m²— excluding many establishments and pre-existing facilities. As a result, wheelchair users faced persistent barriers and limited access to ordinary life. This provision contradicted the legislative intent of its parent statute, rendering it unconstitutional and void. Yet, legislative reform was delayed for 24 years, only occurring after a lower court ruled the decree unlawful and the threshold was reduced to 50m². The Supreme Court’s en banc judgment recognized state liability for damages caused by such imperfect administrative legislation, affirming judicial remedies as the principal avenue for enforcing constitutional rights. Crucially, the decision confirms access rights as constitutionally protected for persons with disabilities. True progress will require comprehensive legislative measures to ensure meaningful access and fulfill the constitutional mandate for equality.