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Responsability of a fault & The Government compensation

  • Public Land Law Review
  • Abbr : KPLLR
  • 2007, 36(), pp.231-253
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

金 勳 1

1영남외국어대 겸임교수

Accredited

ABSTRACT

Ased on Article 2 “Doctrine of Responsability of a fault” in the State Tort Liability Act, the completion of the obligation of compensation requires illegal actions of public official, that is, intentional fault.In the projective view to the “fault” doctrine of subrogating obligation denies the obligation of compensation in the case of illegality with no fault.Therefore, in the view of saving of victims, the concept of the fault should be in the need to be objective, and there were arguments that it is the violation of the responsibility of highly objective attention. In the result, from the Case 95 Da 38677 in Feb. 15 in 1996 that is sentenced by the supreme court, the light fault of the public official is the obligation of oneself, intentional heavy fault is deemed as subrogating obligation: the victim is acknowledged of the right of selective demand. In the latter case, the country can exercise the right to indemnity if compensating instead of the official.Nowdays in order to enlarge the range of the compensating obligations of the country, after considering the kind and degree of the infringement in addition to whether the action is illegal, “the illegality” should be admitted in the case of the lack of justifiability. The problem of “fault” may be right if considering as the violation of the responsibility of attention or the violation of the responsibility of general actions.Furthermore, if the action of the official infringes the basic rights, being the obligation of no fault naturally admitting the obligation of the compensation of a country would be better for a nation.

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