국가배상책임 요건에 관한 소고 – ‘객관적 정당성 상실’ 여부에 관한 검토를 중심으로 -

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This paper examines the “loss of objective justifiability” criterion, as presented in legal precedents, which has emerged as a core requirement for state compensation liability in South Korea. It explores the background of its introduction and the subsequent issues arising from its application. This criterion serves as a standard for determining public officials' illegality and negligence under Article 2 of the State Compensation Act. Legal precedents from the Supreme Court reveal a tendency to use this criterion to limit the scope of state liability for damages. Specifically, even when the illegality of an administrative disposition is established, courts determine state liability by assessing whether the disposition amounts to a “loss of objective justifiability.” However, the scope and wording of this criterion have undergone continuous changes since its introduction, drawing strong criticism from academia and practitioners. Critics point to the lack of a clear systemic position for this criterion and its conflation of illegality and negligence, which undermines coherence and consistency in victim remedies. Particularly problematic is the discrepancy between the determination of illegality in administrative appeals and the criteria for recognizing state compensation liability, potentially leading to inconsistent protection for victims. Moreover, the Supreme Court's reliance on this criterion as a standard for assessing both illegality and negligence, without providing a clear definition, leaves its application largely to judicial discretion, raising concerns about legal predictability and stability. Historically, the criterion has been used primarily to restrict state liability, which critics argue weakens the protection of victims' rights. This paper highlights the influence of private law principles, particularly those underpinning employer liability, on the current state of compensation liability, while advocating for a shift toward a framework of public law-based self-responsibility. It contends that state compensation liability cannot simply be treated as an extension of private law tort liability but requires reinterpretation through the lens of public accountability and social solidarity. Despite this need, legal precedents continue to operate within the confines of private law reasoning, revealing limitations in achieving a balance between public and private interests. This paper critiques the use of the “loss of objective justifiability” criterion as a tool to limit state liability and underscores the necessity for clear legal standards and systematic approaches. It calls for a reevaluation of the fundamental principles of state compensation liability and proposes legislative and judicial reforms to enhance victim protection. In particular, the paper emphasizes the need to clearly distinguish between the standards for assessing illegality and negligence while aligning state accountability with broader public interests.