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Review of Issues Related to Liability of Reparation on State Compensation Law

  • Public Land Law Review
  • Abbr : KPLLR
  • 2016, 73(2), pp.355-375
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim, Se-Kyu 1

1동아대학교

Accredited

ABSTRACT

This study organizes the essence of liability of reparation, the compensator, and several other issues related to the liability of reparation on the State Compensation Law on the strength of a number of preceding studies. 1. First, I agree to the opinion that the essence of the state liability of reparation shall be viewed as the self-responsibility of the state (including public agencies), which is also the position of the constitutional studies. According to the theory of the self-responsibility, which suits the Constitution, the principle of liability with mistake on the State Compensation Law shall be excluded. To elaborate, as the state takes responsibility for an act of a public servant in a modern constitutional state, there may be a doubt on that the state takes responsibility only when there is a deliberation or a mistake. That is, a deliberation or a mistake of the public servant is only a prerequisite for the exercise of the right to indemnity or the right to take a disciplinary action, and is not a prerequisite for the state liability. I agree to the opinion that a subjective responsibility prerequisite such as a deliberation or a mistake is not required in relation to the liability of reparation on the State Compensation Law. Therefore, it is needed to convert the principle of state liability of reparation from the principle of liability with mistake to the principle of liability without mistake through a fundamental revision of the State Compensation Law. 2. Next, if the State Compensation Law makes the scope of the compensator smaller than that in the Constitution or strictly limits the prerequisites of the liability of reparation, the Law must be violating Article 29 Clause 1 of the Constitution. Currently, Article 2 of the State Compensation Law limits the scope of the compensator to ‘the state or the local government,’ limiting the compensator by leaving the liability of reparation of public agencies other than local governments, for instance, a public association establishment corporation, to the Civil Act. Isn’t this violating the Constitution? Therefore, I agreed to the opinion that the compensator on the current State Compensation Law shall be revised into the state or public agencies to suit the Constitution, and I stated it by citing the opinion. 3. In addition, in relation to other state liabilities of reparation, cited and summarized are the other party of the claim for compensation, the issue of a selective right of claim, the issue of liability of reparation of public servants, etc. from the perspective of the theory of the self-responsibility.

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