State Compensation Liability for Legislative Action

The purpose of the state’s existence is to secure the safety of the community, to confirm the dignity of the people, and to guarantee basic rights. In the case of illegal action of the state, the realization of the state’s obligation to guarantee basic rights can be made only under the premise that sufficient relief of rights can be achieved through state compensation. The same applies if there is damage to the people due to legislative action. The authorized legislative power should not be infinite but should be controlled by checks and balances based on the rule of law, and it would be in line with the practical definition of the rule of law that we are pursuing to guarantee the basic rights of the people through sufficient relief of rights by recognizing state responsibility for legislative illegality. To this end, it is necessary to review the requirements of the National Compensation Act, and the members of the National Assembly’s public service, the illegality of their duties, and the recognition of intentional and negligence are particularly controversial. Since it is difficult to recognize smooth liability for compensation from the perspective of the current national compensation law and the Supreme Court, it is necessary to seek to enhance the possibility of relieving the rights of the people in both legal and theoretical aspects and legal policy. “Freedom of legislative formation” is a value that must be respected, but it cannot be an absolute value in relation to the people, and there are more important constitutional values, so the attitude of the Supreme Court, which has developed a logic that denies the state’s responsibility for this reason, needs to be improved. In the recognition of the negligence of legislators, it is necessary to try objectifying the concept of negligence, recognizing the existence of organizational negligence, estimating the existence of negligence, the jurisprudence of the presumption of correspondence, and understanding based on the theory of self-responsibility. As a precedent, there are implications from Japan and France. In order to realize national responsibility based on the ideological basis of securing social fairness, a national compensation system should be organized and operated to facilitate the recognition of illegality and negligence responsibility if there is damage caused by legislative action. In recent administrative legislative omissions related to the right to access the disabled, the Supreme Court has actively recognized national liability for compensation, which is significant, and legislative solutions to expand the scope of rights relief, such as the revision of the National Compensation Act based on the theory of self-responsibility, are necessary. It is also important to accurately grasp the purpose of delegation of the law, fulfill administrative legislative obligations, and create a structure in which laws can be reorganized in a timely manner in accordance with social changes. The extent to which the liability for compensation for legislative action will be recognized needs to be carefully reviewed based on legal considerations and social agreements, so it should be studied as a continuous task in the future. In addition, institutional supplementation such as legislative impact assessment is needed as an alternative that can prevent damage caused by legislative action before it occurs in the first place. This is because attempts should be made to reduce the possibility of national liability due to legislative illegality by making high-quality legislation by predicting and evaluating the impact, side effects, and budget-related effects of the bill on the country and society in advance. To this end, it is necessary to establish a preliminary impact assessment system such as regulatory impact assessment and supplement it through post-evaluation methods such as the legislative result return system.