교정 영조물 국가배상책임에 대한 기본권 효력에 관한 해석론

초록

Fundamental rights possess both the status of a right to defend against state power and the status of a claim to assert the state's duty of protection against danger. Unlike the existence of the resulting illegality of overcrowding, in cases where it is inconsistent to acknowledge the intent or negligence of public officials, it is more appropriate to directly apply the effect of fundamental rights or to find an alternative legal basis. In recognizing state compensation for overcrowding in correctional facilities, the Supreme Court included not only strict statutory violations under Article 2 of the State Compensation Act, but also violations of respect for human rights, prohibition of abuse of power, and breach of good faith. Although the decision is a step forward from the practice of not recognizing tort liability for human rights violations in correctional facilities, it can be said to be contradictory in theory as it recognizes the direct effect of fundamental rights on tort liability while expressing the indirect effect of fundamental rights. In order to recognize the liability of correctional facility officials by applying Article 2 of the State Compensation Law, they must have intentionally and negligently violated the law and caused damage. Although case law seems to recognize liability based on human rights violations, it is difficult to apply Article 2 in practice. Rather, it seems logical to apply Article 5 of the State Compensation Act in recognition of the direct effect of fundamental rights. In other words, the Supreme Court's ruling needs to be framed in a logic that affirms strict liability as the responsibility of the state itself, rather than liability for the negligence of public officials. This is due to the difficulty in recognizing the causal relationship between the illegal outcome and the public official's act, and is thought to be a consequential liability for the state's failure to expand correctional facilities in advance.

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