국가배상청구소송의 관할법원

초록

State liability for unlawful acts and state compensation for lawful acts are two pillars that comprise the monetary relief system of public authorities. Although the Supreme Court of South Korea has treated state liability claims as a civil law case, it is a right recognized by public law and should be treated as an example of the party litigation defined by Article 3 of the Administrative Litigation Act. The interpretation of the governing acts such as the Constitution of South Korea, the Administrative Litigation Act, and the State Liability Act leads one to the conclusion that administrative courts have jurisdiction over state liability claims: one's right to a state liability is guaranteed as a fundamental right under Article 29 Section 1 of the Constitution; the State Liability Act is enacted to guarantee the above fundamental right; the principle of rule of law dictates that there be a relief for unlawful acts of public authorities, one of which being the state liability. Though some critics say otherwise, the Supreme Court’s precedent has developed dogmatics sometimes unique to the state liability and different from that of civil tort law. A recent Supreme Court decision acknowledged that the fault requirement is met if there is an objective violation of duty for acts in question; individual public servants may not be found at fault, but still, there can be a fault by the organization as a whole. This is an indication that the Supreme Court is moving towards recognizing the state liability not as a vicarious liability but as a direct liability. It is a natural result of interpreting the governing acts of state liability that the state liability claims belong to the party litigation. The Supreme Court needs only to change its precedent and abandon its current practice; it is unnecessary to revise the Administrative Litigation Act or other legislative measures to recognize the jurisdiction of administrative courts. It should also be taken into account that state liability claims require judges with knowledge and experience in administrative cases. It is regrettable that the procedural differences between the party litigation and the civil law litigation are minor, but the change of jurisdiction may just well provide an opportunity for the development of a hearing process suited not only for state liability but also for party litigation as a whole.

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