대한민국 행정의 기능부전과 국가의 책임

Abstract

Even after the COVID-19 crisis of the past few years, a schematic process has been repeated in the follow-up to disasters in Korea, from the Itaewon tragedy in 2022 to various incidents and accidents in 2023. This process has been called the so-called ‘politics of disaster’, which emphasizes the political and social conflicts surrounding disasters rather than the results of analyzing the causes of disasters and preparing responses. An accompanying feature of the politics of disaster is that the issue of responsibility(Verantwortung) emerges almost immediately, without the proper legal investigation of the cause being finalized. Here, liability is not strictly legal, especially in the sense used in public law. On the other hand, in the post-disaster process in Korean society, the term responsibility is used less as an academic concept and more in a political context, as a kind of consequential responsibility that requires the resignation of public officials as a moral obligation to repair the accident. The problem is that this political responsibility ultimately becomes irrelevant to the original purpose of the debate, which is to identify the causes of the disaster and develop countermeasures. If a disaster has caused and escalated damage, it should be analyzed in terms of the structural failure of the public administration to fulfill its duty to protect the safety of the public. In other words, the dysfunction of the public administration is the primary cause of the disaster. In this study, we first analyze the dysfunction of public administration and its causes, examine the legal theory of liability, and explore legislative and policy alternatives using the 25th World Scout Jamboree In Saemangeum as the subject of this paper. First, I reviewed the organizational theory of Niklas Luhmann, who developed various theories on the problems of administrative organizations as a tool for problem analysis. With reference to Luhmann's work, I examined the German theories of Steering Theory(Steuerungstheorie) and Legal Pluralism as legal alternatives. As legal issues, I examined the replacement of agency heads, administrative unity, the problem of corruption in the process of cooperation with the private sector, and the problem of the structure of the administrative committee. The existing legal practice for administrative dysfunction and failure to respond to disasters is to pursue strict liability through criminal trials and state compensation. However, such an approach is difficult to expect practical effects due to differences in in the law of responsibility in each area, and side effects are also concerned. The public law theory of liability, which is based on the law of state compensation claims, can be presented as an alternative. In a recent case on 9th emergency measures (Supreme Court Case 2018Da212610), the Supreme Court no longer considers the individual participation of public officials, but rather evaluates a series of state actions as a whole in a way that recognizes the organizational culpability of the state as a whole. As a result, the theory of State Compensation Act should be reconstructed from the subjective negligence and responsibility of individual public officials as far as possible to a theory of public law liability, which consists of the self-responsibility of the state itself. Finally, this article emphasized the importance of the role distribution between the executive and the legislative branch, and the deliberative legislative process as a legislative strategy to enhance public law liability for the phenomenon of administrative dysfunction. The state's responsibility for administrative dysfunction in preparation for disasters is clear. However, reducing it to individual responsibility requires caution.