國家賠償의 本質에 관한 分析

An Annalysis on the Essence of the State Compensation Law

Constitutional law Article XXIX Stipulated about State Compensation ｢① A person is damaged by the public servent in the discharging his duty unlawfully throngh deliveration or mistake can claim for the damages against state or local self-governing body, In its case official servent can t avoid his own penalty. ② Soldier, military service Servent., police officer etc. stipulated by the law cant claim for the damages against state or local Self-governing body excepting getting only the compensation stipulated by the law which each one gests compensation because of battle or discipline etc. conerning the discharging his duties｣. State compensation law Artiele Ⅱ stipulated the state compensation because of public servents malfeassances and the claim for it against official servernt made malfeasances. ｢① State and local self-governing body should compensate for damages when a public servent damages a person unlawfully through deliberation or mistake in his discharging duties or gets liability compensation by the clause of motorcar compensation security law. however……. ② In case of clause 1, state and local self-governing body can claim for the compensation to the public servent who damages a person through deliberation or great weight mistake｣. State compensation law Article Ⅴ stipulated about the state componsation because of the blemishes of public facilities and claim back for it to the responsible post with the cause of damages ｢① Sate and self-governing body should compensate for the damages they occur because of the blemish of the road․river(watercourse) in its installation or management. In this situation applying the Articl Ⅱ clause 1 proviso, Article Ⅲ and 2 of Article Ⅲ ② State and local self- governing body can claim back for the compensation when another liable man with the cause of damage is｣. The details of investigation as the essences of state compensation law are ① the nature of constitutional provisions about the state compensation, and the state compartion law, ② the nature of stute compersation duty and the outside apperance act of state compensation, ③ The nature of state companstation and the inside appearance act of state compensation etc. ① First nature of the constitutional law is basic right of property and claim aqamst state and local-govening body. Second, the nature of state compensation law is the public law because that it is a law attached to the Article 29 clause 1 of constitution law and has the inforcement ordinance issued by the president attached administrative law. By majority it is the public law but superem eourt decided on it as the private law at ferst, but as the public law now. ② The nature of the state compensation duty and the outside appearance act of state compensation is able to be find by the nature of public servent unlawful act and public facilite blemish. By majority they are not the act of public servent or manager that state is liable for it instead of them, but they are the act of state that is liable for itself. By majority above officer s acts etc. are not the legal conditions but the legal fact of state compensation. The legal conditions of state compensation are the unlawful act and public facilite blemish of state, In cases of officer or manager repeating(direct) liability for injured person and claming back(indirect) liability for the state compensated, the unlawful act by public servent and public facilite blemish by manager are not only legal conditions but also legal facts. Suprem court decided on the former the legal condition and legal fact are not different but same, but on the latter is equal to mojority. ③ The nature of the stat componsation duty and the inside appearance act of state compensation is able to find by the nature of mistake in the administrative purpose.