ScholarWorks@숙명여자대학교

초록

The Korean Supreme Court has ruled that it is unlawful for an administrative body to fail to fulfil its legal obligation to ensure access for people with disabilities without justification. This ruling is the first to recognise state compensation for inadequate administrative legislation. What is remarkable about this judgment, however, is the requirement to establish state compensation for administrative legislative failure. In order to establish state compensation for administrative legislative failure, it is necessary to clarify the basis for deriving the duty to legislate. It should not be confused with the issue of legislative acts in relation to constitutional obligations. In practice, the Korean Constitutional Court sometimes treats the problem of administrative legislative inaction as legislative inaction. Inaction of administrative legislation is not a constitutional issue. In Germany, lawsuit on the establishment of norms is not constitutional. These actions are not normative control litigation, but administrative actions such as general confirmation suit or general performance suit. The obligation to enact administrative legislation (enforcement decree) must be derived from the text and content of the law. In addition, it is not advisable to over-extend the concept of offence in determining the offence of administrative legislative enactment. In principle, failure to comply with the obligation to establish norms is a violation of law, and it is not reasonable to recognise the violation on the basis of the natural law, such as the estoppel doctrine, human rights. In the target judgment, it was held that a breach of the duty to enact, i.e., an omission, does not directly give rise to a claim for state liability, but rather a loss of objective legitimacy, and thus negligence is recognised. Thus, it can thus be seen that the majority opinion considers negligence as distinct from illegality. However, the relationship between illegality and negligence is unclear, and the Korean Supreme Court should clarify the relationship between the two in the future. In practice, however, it is not easy to prove the subjective element of liability, especially in the case of administrative legislative omissions, and it is therefore appropriate to consider the prima facie case in such matters. Whether it is appropriate to seek redress through a claim for damages for unlawful administrative and legislative acts requires further discussion. Rather, it is important is to correct the administrative legislative inaciton so that the correct norms can be made. We look forward to the changes and developments in case law in this regard.

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