Research Report
Study on how to improve the compensation system for non-property infringement of legal interests
Ⅰ. Background and Purpose
▶ Administrative Damage Telegram System
○In general, the administrative compensation system is recognized as a system in which an administrative entity repays damages or losses caused to a person due to public administration. The public law compensation system in Korea is formed in a dual structure of state compensation for tortious acts and compensation for losses caused by lawful acts.
○In this case, the state compensation system based on Article 29 of the Constitution is specifically regulated through the State Compensation Act, while the loss compensation stipulated in Article 23 of the Constitution is characterized by the "Act on the Acquisition and Compensation of Land for Public Works" as a general law.
▶ Deficiencies and deficiencies of the administrative compensation system
○There are deficiencies in the operation of the administrative compensation system, i.e., the scope of compensation under state compensation includes both property and non-property legal interests, but the state compensation law adopts the tort and negligence liability system, which creates a gap in the compensation system for damages caused by illegal but non-negligent acts of public officials.
○In the case of compensation for loss, if the loss was not intended or anticipated by the administrative entity during the legitimate administrative action, or if the legitimate administrative action caused infringement on non-property legal interests, there is a gap in the telegraphic system that is difficult to apply under the existing law of compensation for loss.
-As a legislative and practical response to these deficiencies, the legislature has continued to develop legislative efforts to remedy the above deficiencies in the tort system. The most representative example is Article 11(2) of the Police Officers' Duties Execution Act, which provides that if a police officer suffers a loss of life, body, or property due to the lawful execution of his or her duties, he or she shall be entitled to just compensation regardless of whether he or she is responsible for the cause of the loss.
○This legislative effort is mainly manifested in the area of orderly administration, as shown in the above example, which is understood to be an attempt to resolve the infringement of non-property legal interests such as life, body, etc. by expanding the category of loss compensation that does not require proof of intent or negligence in the event of infringement of non-property legal interests such as life, body, etc. in the police and fire administration, which are representative areas of orderly administration.
▶A point of disagreement in both legal theory and administrative practice is the discussion on the application of the compensation standard in the "Act on Courtesy and Support for Doctors' Boxes, etc." as a standard for loss compensation.
○In the case of the "Act on Honoring and Supporting Doctors, etc.", which was enacted to honor the noble will of doctors as active agents for the nation and society and to contribute to the realization of social justice, the Act requires compensation for damages incurred in the course of "rescue activities", which is similar to the exercise of public authority in the administration of order in that it is a situation where danger and urgency are recognized
○Unlike the compensation under the "Police Officers' Duties Enforcement Act" exemplified above, the Act is applied when a rescue act is performed, and the rescue act at this time is a voluntary act (active) that is recognized as direct and active. Therefore, it is desirable to view the nature of cooperation under the use of public power and voluntary rescue acts differently. However, the current relevant legislation applies the same compensation standards as the "Act on Honor and Support for Doctors' Boxes, etc.", which is problematic.
○In addition, in the case of the 'Compensation Review Committee' stipulated in the relevant laws, the need to prepare regulations for the lack of complaint procedures such as appeals is being raised.
▶In order to improve awareness of these issues, this study aims to "define the purpose and legal nature of compensation for infringement of non-property legal interests caused by legitimate administrative actions, and to make legislative recommendations on how to improve the legal system for compensation for losses caused by infringement of non-property legal interests by conducting a review of compensation standards and procedures under relevant laws.".
Ⅱ. Main contents
▶ Deficiencies and Deficiencies of the Public Law Damage Telegram System
○Review and analysis of the legal deficiencies in the system of administrative damages and compensation for losses, which are dichotomously organized under public law, and the legal logic and legislative developments to compensate for them
▶ Loss compensation system for non-property legal infringement and major issues
○Investigate a number of laws that currently provide for compensation for losses related to non-property legal infringement in Korea and identify their legislative form, main contents, and characteristics
○Through research and analysis, the main issues in the current legal system are 1. unclear legal nature of loss compensation for non-property infringement, 2. application of loss compensation standards that do not take into account the purpose of the legislation, and 3. ineffective operation of the loss compensation committee
▶Contents Legislative Recommendations for Improving Compensation Standards and Procedures for Non-Property Legal Injuries
○Legislative proposals for each major issue focus on the nature and purpose of compensation for non-property legal infringement, the appropriateness of applying the loss compensation standard, and strengthening the professionalism of the composition and operation of the loss compensation review committee
Ⅲ. Expected Effects
▶It is expected to define the purpose and legal nature of compensation for infringement of non-property legal interests caused by legitimate administrative actions, and contribute to the rationalization of the administrative practice of the loss compensation system for infringement of non-property legal interests through legal review of reasonable compensation standards and procedures.