규제기관의 부작위로 인한 국가배상책임

State Liability of Reparation Caused by the Omission of Regulatory Agencies

Precedents related to regulatory agencies‘ liability of reparation caused by their omission consider the requirements of protection of private interests as a factor of reasonable causations and it sticks to such a tendency that if the protection of private interests is recognized, reasonable causation is also recognized and if it is denied, reasonable causation is also denied. Like this, the issue of protection of private interests on the state liability of reparation has been raised by the precedents to prevent unlimited extension of responsibility to cover damages caused by omission. However, as the interests which were considered reflective interest in the past have been public rights or legal interest gradually, cases that public officials have legal liabilities for the people have been increased. It revised the principle of liability with fault for the purpose of realizing that of society and state by the court which has been faithful to the logic of formal law and made ruler of risk sources compensate for damages when the risk was real and it may be seen as the trend to extend the state liability on public law. There is also such a position that in case that precedents lack an objective validity not to accept a violence by social norms, it may constitute an illegal act. It has the same context as mutual accessibility of illegality and fault and in case that although administrative measure was done depending on exercise standards of discretion, an administrative act was illegal beyond the range of discretion, the professional negligence of the public official concerned can be recognized.