國家賠償法 제2조 제1항의 立法論上 問題點 ― 公務受託私人을 중심으로 ― (Problems on Legistlation of State Compensation Act Article 2(1) - In Focus on 'private persons entrusted with public duties' -)

서지정보

· 발행기관 : 행정법이론실무학회
· 수록지 정보 : 행정법연구 / 26호 / 225 ~ 259페이지
· 저자명 : 이상천

초록

According to the present State Compensation Act Article 2(1), the definition of 'private persons entrusted with public duties' falls within the 'public officials'.
Thus the 'private persons entrusted with public duties' take no civil responsibilities against both the government's and the victims' side as far as without purpose or gross negligence by the above Act Article 2(3).
But the 'private persons entrusted with public duties' which has independence on organization and operation should take the civil responsibilities for their prvious deeds. Just the principle of liability with fault should be adapted for their deeds.
If not so, it means the violation of equity, and it leads to the government's financial overload, and the reduction of carefulness to prevent accidents.
For the above reasons, the principle of liability with fault should be adapted widely even in the area of 'private persons entrusted with public duties'.
Firstly, the 'private persons entrusted with public duties' in the above 2(1) means the ones which has independence of low degree below average in relevance with the government. The ones which has independence of high degree doesn't go into it on the above 2(1).
The ones which has independence of comparatively high degree from the government should be ruled by the principle of joint-malfeasance liabilities if possible.
And in the cases as against the highly independed ones the principle of joint-malfeasance liabilities should be applied as far as it goes.
Even though in the above cases the clauses of 'State Compensation Act' should be applied, it could be interpreted that the 'private persons entrusted with public duties' should answer for what they had done regardless of gross negligence or not.
Secondly, for the intention of legistlation according to the legal view which the court and academic circles went after, the expression of 'private persons entrusted with public duties' is inadequate. The expression of 'the private persons who could be measured as entered into administrative organs, in concrete cases, entrusted with public duties' would have been better for that meaning.
Thirdly, However if the 'private persons entrusted with public duties' had no assets to pay for their liabilities to the errors, the victims couldn't be saved. Thus it is recommended that the legal steps making up the shortage of their paying abilities should be taken.
In contracting of trusting public services, the way of liabilities apportionment should be fixed and it is recommended that the above private persons should take out a policy on the liability for what they did.
The matter of gross negligence or not is not the one of scale of the compensation sum. The size of compensation sum doesn't go with the degree of negligence. Even though the 'private persons entrusted with public duties' committed a slight error, the size of government's compensation sum could be gross. The expression that the private persons should be free from liabilities regardless of the degree of negligence would overload the State and local government's finance. Finally, 'State Compensation Act Article 2(1)' should be revised.

영어초록

According to the present State Compensation Act Article 2(1), the definition of 'private persons entrusted with public duties' falls within the 'public officials'.
Thus the 'private persons entrusted with public duties' take no civil responsibilities against both the government's and the victims' side as far as without purpose or gross negligence by the above Act Article 2(3).
But the 'private persons entrusted with public duties' which has independence on organization and operation should take the civil responsibilities for their prvious deeds. Just the principle of liability with fault should be adapted for their deeds.
If not so, it means the violation of equity, and it leads to the government's financial overload, and the reduction of carefulness to prevent accidents.
For the above reasons, the principle of liability with fault should be adapted widely even in the area of 'private persons entrusted with public duties'.
Firstly, the 'private persons entrusted with public duties' in the above 2(1) means the ones which has independence of low degree below average in relevance with the government. The ones which has independence of high degree doesn't go into it on the above 2(1).
The ones which has independence of comparatively high degree from the government should be ruled by the principle of joint-malfeasance liabilities if possible.
And in the cases as against the highly independed ones the principle of joint-malfeasance liabilities should be applied as far as it goes.
Even though in the above cases the clauses of 'State Compensation Act' should be applied, it could be interpreted that the 'private persons entrusted with public duties' should answer for what they had done regardless of gross negligence or not.
Secondly, for the intention of legistlation according to the legal view which the court and academic circles went after, the expression of 'private persons entrusted with public duties' is inadequate. The expression of 'the private persons who could be measured as entered into administrative organs, in concrete cases, entrusted with public duties' would have been better for that meaning.
Thirdly, However if the 'private persons entrusted with public duties' had no assets to pay for their liabilities to the errors, the victims couldn't be saved. Thus it is recommended that the legal steps making up the shortage of their paying abilities should be taken.
In contracting of trusting public services, the way of liabilities apportionment should be fixed and it is recommended that the above private persons should take out a policy on the liability for what they did.
The matter of gross negligence or not is not the one of scale of the compensation sum. The size of compensation sum doesn't go with the degree of negligence. Even though the 'private persons entrusted with public duties' committed a slight error, the size of government's compensation sum could be gross. The expression that the private persons should be free from liabilities regardless of the degree of negligence would overload the State and local government's finance. Finally, 'State Compensation Act Article 2(1)' should be revised.

참고자료

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