부진정 행정입법부작위에 대한 국가배상 및 개선입법의무 이행 방안 검토- 대법원 2024. 12. 19. 선고 2022다289051 판결을 중심으로 -

The Supreme Court Full Bench Decision 2022da289051, ruled on December 19, 2024 (hereinafter referred to as the “Subject Decision”), held that the stipulation in Attached Table 1 of the Enforcement Decree of the Act on the Guarantee of Promotion of Convenience for Persons with Disabilities, the Elderly, and Pregnant Women, which defined the scope of mandatory installation of convenience facilities for guaranteeing accessibility for persons with disabilities as retail stores of 300 square meters or more, constituted an illegal omission of administrative legislation of an imperfect nature subject to state compensation. This ruling is the first case to establish that the illegality of an imperfect administrative legislative omission can be challenged through a state compensation lawsuit, particularly in a situation where judicial control over such omissions has been difficult. In this article, we intend to specifically examine the considerations regarding the requirements for Article 2, Paragraph 1 of the National Compensation Act as presented in the Subject Decision, including the criteria for official duties, violation of laws and regulations, intent or negligence, causal relationship, protection of private interest, and damages. This aims to estimate and review the standards by which state compensation regarding an imperfect administrative legislative omission will be recognized in the future. Furthermore, the substantial rectification of the illegality following this decision should not be limited to the payment of consolation money through state compensation, but will be achieved through the fulfillment of the duty to enact remedial legislation. Therefore, we will also specifically consider how the regulations related to accessibility for persons with disabilities need to be revised to align with the duty to enact remedial legislation.