[위자료][공1994.7.15.(972),1923]
Criteria for determining the proximate causal relationship between a public official's occupational violation and damage;
In order to claim damages against a third party on the ground of a public official’s violation of an official duty imposed by law, there is no proximate causal relationship between a public official’s violation of an official duty and a third party’s loss. In determining the existence of proximate causal relationship, not only the probability of the occurrence of a general result, but also the purpose of the statutes and other rules of conduct that impose an official duty, or the form and degree of damage, etc. of the harmful act. Thus, if the purpose of protection of the statutes that impose an official duty is not to protect the interests and safety of the members of society, but to regulate the internal order of the public public interest or the administrative agency, it is not simply to protect the interests and safety of the members of society, but to regulate the internal order of the administrative agency, if a public official suffers damage to a third party on the ground of a public official’s violation of an official duty
Articles 75 and 751 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
[Defendant-Appellee] Plaintiff 1 and 1 other
Defendant-Appellee et al., Counsel for the defendant-appellant
Seoul High Court Decision 92Na72449 delivered on May 27, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the first instance judgment cited by the court below, Article 2 (2) of the Addenda of the Local Autonomy Act (Act No. 4310, hereinafter the Addenda of the Local Autonomy Act) provides that the first Mayor/Do Governor and the head of the Si/Gun/autonomous Gu under the same Act shall be elected within June 30, 192. Article 95 (3) of the Election of Heads of Local Organizations Act provides that the election day of the head of a local government, the election of the head of a newly established local government, and the election day of the head of a newly established local government shall be 18 days before the election day at the latest. Article 6 of the Addenda of the same Act provides that the election day of the head of the local government under the same Act shall be announced by the President. Article 2 (2) of the Addenda of the Local Autonomy Act provides that the defendant, the President of the local government, did not make a public announcement of the election day from June 30, 1992 to the day before the election day of the head of the local government, and rejected the above defendant's mental suffering.
2. Where a public official causes damage to a third party on the ground of a public official’s violation of an official duty imposed by an Act or subordinate statute, a claim for damages to a third party shall not be made without a proximate causal relationship between a public official’s violation of an official duty (including an omission; hereinafter the same shall apply) and a third party’s damage. In determining the existence of proximate causal relationship, not only the probability of the occurrence of a general result, but also the purpose of Acts and subordinate statutes and other rules of conduct that impose an official duty, the form of a harmful act, the degree of damage, etc. shall be comprehensively taken into account. If the purpose of protection of the Act and subordinate statutes that impose an official duty is not to protect the interests and safety of the members of the society, but merely to regulate the internal order of the public public sector or the administrative agency, it cannot be said that there is a proximate causal relationship between a public official’s violation of an official duty and damages suffered by a third party (see, e.g., Supreme Court Decision 91Da43466, Feb. 12, 1993)
However, the purpose of protecting the President by holding an election of the head of a local government under the Local Autonomy Act and the Local Autonomy Act that imposes an obligation to publish the election day of the head of a local government is to promote democracy in the administration of local autonomy (Article 1 of the Local Autonomy Act), and to contribute to the development of local autonomy and democratic politics (Article 1 of the Election of the head of a local government) is to protect public interests and to protect personal rights, etc. of citizens. As such, it is apparent that the Defendant, who is a public official, did not publish the election day of the head of a local government in violation of the above Local Autonomy Act, etc., and even if the Plaintiff, a third party, suffered emotional distress, there is no proximate causal relationship between the omission by the Defendant in violation of the above official duty and the
Therefore, the Plaintiff’s claim for damages of this case cannot be dismissed without any further need to determine the remainder. Therefore, the lower court’s determination dismissing the claim of this case is justifiable in its conclusion. It cannot be employed as it criticizes the lower judgment as to the point that it does not affect the conclusion.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Sang-won (Presiding Justice)