[2] Legislative intent of Article 2(1) main sentence and Article 2(2) of the State Compensation Act

[3] In a case where a public official causes damage to others by a tort while performing his/her duties, whether the public official is liable for damages (=limited theory)

[4] Whether it violates Article 23 of the Constitution for not recognizing a public official's individual liability for damages against a public official's official's unlawful act in the past

[5] Whether the legal principle of Article 29(2) of the Constitution of the Republic of Korea and the proviso of Article 2(1) of the State Compensation Act should vary in the case of a public official.

[Separate Opinion] In relation to the main text of Article 29(1) proviso of the Constitution, it is clear that the public official's individual responsibility is in relation to the main text of the Article 29(1) that it is an individual's responsibility for tort. The concept of tort in this context is a legal general concept, and it means that the act causes damage to another person due to intentional or negligent act. There is no room to raise a question in general theory that the negligence in this case does not distinguish between gross negligence

[Dissenting Opinion] The proviso of Article 29(1) of the Constitution provides that a public official who committed an official act shall not be exempted from liability for damages. However, it shall be deemed that the proviso of Article 29(1) of the Constitution provides that a public official who committed an official act shall not be exempted from liability for internal responsibility.

[2] [Majority Opinion] The legislative intent of Article 2(1) main text and Article 2(2) of the State Compensation Act is to guarantee citizens' property rights by imposing liability on the State, etc. who has sufficient ability to pay damages to another person due to an unlawful act committed by a public official in the course of performing his/her official duties, and it is merely a defect that can normally be predicted in the performance of his/her official duties in cases where a public official actually inflicted damages on another person due to an unlawful act committed by a public official. Such a public official's act is deemed the act of the State, etc., and is still deemed the act of the State, etc., and thus, securing stability in the performance of public official duties because the public official's liability for damages incurred therefrom is entirely attributed to the State, etc., and if a public official's unlawful act is related to his/her official duties, such act cannot be attributed to the State, etc., even if it is related to his/her official duties. However, even in such cases, if the appearance of the act is objectively observed, the State, etc. shall ultimately be held liable to an individual.

[Separate Opinion] There is no doubt that the legislative intent of Article 2(2) of the State Compensation Act is securing the stability and efficiency of the performance of duties by public officials. However, the above provision of the State Compensation Act is clear in light of the fact that the purpose of the State Compensation Act is to regulate only the relationship between the State, etc. and the public officials, and that it does not stipulate the relationship between the State, etc. and the victim, and the relationship between the State, etc. and the victim, and the public officials, and that it is not clear in light of the fact that the above provision only regulates the relationship of internal indemnity between the State, etc. and the public officials.

[Dissenting Opinion] Article 29(1) of the Constitution of the Republic of Korea and Article 2(1) of the State Compensation Act provide for a State or a public organization’s unconditional liability in relation to a public official’s tort in the course of performing his duties, such as liability for his duties, should be deemed to focus on the exemption of a public official’s individual liability for damages in order to have a public official, who is a service provider for the entire people, actively and actively, perform his duties.

[3] [Majority Opinion] In a case where a public official causes damage to another person by a tort while performing his/her duties, in addition to the State’s liability for damages, the public official’s individual person shall be liable for damages caused by a tort if he/she acted intentionally or by gross negligence. However, in a case where the public official is only in progress, it is a correct interpretation that the public official does not bear liability for damages in harmony with the legislative intent of Article 2

[Separate Opinion] In the case of illegal acts committed by public officials due to their official progress, it is interpreted that the public official's liability for damages against the victim is not exempted. In light of the history of the relevant provisions of our Constitution, it is not only faithful to the explanation, but also accords with the spirit of guaranteeing fundamental rights of the Constitution and the ideology of the rule of law.

[Dissenting Opinion] In a case where a public official commits an illegal act on duty, only the State or a public organization is liable for damages against the victim under the State Compensation Act, and the public official is not liable for damages against the victim even if there is an intentional or gross negligence.

[Dissenting Opinion] In a case where a public official who shall faithfully work for the public interest causes damage to the people during the performance of official duties as a servant of all citizens with sovereignty, the government is liable for damages on behalf of the public official in lieu of neglecting the conflict relationship so that a public official who is a citizen who is a citizen is responsible for the performance of official duties by direct litigation, and the State is liable for damages in lieu of the public official in lieu of the public official. It would be the way to systematically secure the public official's duty of good faith and performance of official duties in the form of recourse only if the public official is intentional or gross negligence according to the contents of the non-performance of official duties. It would be the way to understand this harmoniously.

[4] [Majority Opinion] In light of the fact that a public official’s unlawful act in the course of performing official duties is recognized only the State’s liability and that the public official’s liability for damages is not recognized from the perspective of the injured party’s citizen, it would be a limitation on the property right guaranteed by Article 23 of the Constitution. However, in light of the fact that stability in performing official duties is for the public interest and that the State’s liability is recognized even if the individual liability is not recognized, and that the requirements for recognizing the State’s liability are mitigated compared to the employer’s liability under the Civil Act, it shall be deemed that

[Separate Opinion] Even if the stability of the execution of a public service belongs to the public interest, it is legitimate to perform the public service, and the stability of the illegal execution of the public service is not consistent with the public interest, and it is not clear that the victim who suffered the loss due to the illegal performance of the public service bears the burden of financial burden. On the contrary, as the suppression function of the illegal act is satisfy and the financial burden of the State is increased, it would result in a violation of the public interest. In addition, the restriction on the fundamental rights of the citizens must be governed by the law in the case of necessary for the public welfare, and it is also necessary to limit it by interpretation even without such law.

[5] [Majority Opinion] The legal principle of Article 29(2) of the Constitution and the proviso of Article 2(1) of the State Compensation Act does not change because the victim cannot claim compensation under the State Compensation Act except as a public official who is a public official under Article 29(2) of the Constitution and the proviso of Article 2(1) of the State Compensation Act. This is because Article 29(2) of the Constitution provides that in the case of military personnel, civilian employees, police officers, and other public officials prescribed by the Act, the State, etc. shall not claim compensation for damages incurred in relation to the performance of their duties, such as combat and training, in addition to the compensation prescribed by the Act, and the proviso of Article 2(1) of the State Compensation Act also implements it by following it. However, this is due to the constitutional decision that it is reasonable to recognize the State’s compensation for

[Dissenting Opinion] Since a soldier, etc. has a high risk of being subject to an accident in the course of performing his/her duties due to the unique characteristics of his/her duties, the risk of an accident in the course of performing his/her duties is taken over by the State and honored the victim as a person of distinguished services to the State, and it is the purport of Article 29(2) of the Constitution to resolve the accident with compensation

The court below held that the defendant, who was on duty as a driver or soldier of the 27th unit of the Air Force, committed the above-mentioned illegal act on July 29, 191, and had the above-mentioned military bus belonging to the above 38th unit, and operated the above 11:0 on the military bus under the direction of the 38th unit of the Air Force, and had the victim of the above 38th unit, claiming damages from the above 11:0 on the 21st unit of the National Highway, Chungcheongnam-gun, Seocheon-gun, the 1st unit located in the National Road 21:0 on the 21st unit of the city road, and had the public official of the above 6th unit, claiming damages from the above 6th unit of the above 6th unit due to the above 4th unit's illegal act. Thus, the above 6th unit's right to request damages from the above 6th unit's own fault to prevent the above 6th unit's collision.

2. We examine the grounds of appeal.

A. Article 29(1) of the Constitution of the Republic of Korea provides that "Any citizen who suffers from a tort committed by a public official in the course of performing his/her duties shall be entitled to a reasonable claim against the State or a public organization under the conditions as prescribed by Act. In this case, his/her own responsibility shall not be exempted." This proviso clearly states that the State's liability is borne by the State or a public organization (hereinafter "the State, etc.") in cases where any damage is inflicted on another person due to a public official's tort in the course of performing his/her duties and the public official's individual liability is separate in cases where the State,

In addition, the liability of a public official who is not exempted above shall be included in all legal responsibilities such as civil and criminal responsibilities or disciplinary responsibility inside the agency such as the State, and in this context, there is no ground to regard that the civil liability should be excluded as a matter of course from the civil liability.

The proviso of Article 29(1) of the Constitution provides that even if the State, etc. is liable for a tort committed by a public official on duty, it shall not be exempt from the public official’s civil and criminal liability, but it is difficult to view that the proviso of Article 29(1) of the Constitution provides that the public official’s specific scope of liability for damages

The first state, etc. is a public official's act, and the effect of a public official's act is not attributed to the State, etc., but the effect of a public official's act in the course of performing his/her duties when he/she causes loss to the State, etc. is problematic. Thus, the main text of Article 29 (1) of the Constitution of the Republic of Korea is that the public official is in the position to have him/her perform his/her duties, and the state, etc. having sufficient compensation power, bears the responsibility for damages to the victim, thereby guaranteeing the property rights of the people, and it is the State Compensation Act enacted to realize this in detail.

However, in this case, the problem of individual responsibility of a public official who committed an illegal act is another problem different from the state liability, and in modern times, the affairs handled by a public official may occur due to the development of society in diverse, complicated, wide range, and so on. In such a case, if the public official is liable to compensate for damages to an individual, it would result in a violation of the principle of equity, and if the public official is liable to compensate for damages, it would result in a violation of the principle of equity, and there is a possibility that the public official will take the attitude of lowering the morale of the public official and avoiding the public official's assistance in his own defense. On the other hand, on the other hand, even in the case of damages caused by the illegal act by a public official, if the State completely excludes the individual liability of a public official on the ground that the public official is liable to compensate for damages, it could not expect the effect of monitoring and

In addition, the state liability and the individual responsibility of the public officials are separate from each other, but it is mutually complementary in terms of protecting the rights of the victims.

In this regard, the problem of determining the scope of individual responsibilities of public officials is not only the remedy for victims, but also the problem of legislative policy to prepare any legal device under the State Compensation Act in order to coordinate conflicting values such as the suppression of illegal acts of public officials, the guarantee of stable performance of public duties, financial stability, etc.

However, there is no provision directly stipulated in the State Compensation Act on this point. However, the main sentence of Article 2 (1) of the State Compensation Act provides that "the State or a local government shall compensate for any damage caused by a public official who has committed an act in the course of performing his/her duties in violation of the Acts and subordinate statutes, or who is liable for compensation pursuant to the provisions of the Guarantee of Automobile Accident Compensation Act," and Article 2 (2) provides that "the State or a public organization may compensate for such damage if the public official intentionally or by gross negligence has occurred in the case of the main sentence of paragraph (1)" that "the State or a public organization may compensate for such damage to the public official in accordance with this Act, if the public official has intentionally or negligently committed an act in the course of performing his/her duties, regardless of the degree of the cause attributable to the employee in accordance with Article 756 (3) of the Civil Act that provides for the right to indemnity against the employee in the course of civil liability, the State or a local government shall not recognize the right to indemnity if the public official is an employee without fault or negligence.

The legislative intent of the State Compensation Act is to ensure the property rights of the people by imposing liability for damages on another person in the course of performing his/her duties on the part of the State, regardless of whether he/she has been negligent in appointing and supervising the State, etc. who is sufficiently capable of performing his/her duties. However, if a public official actually causes damage to another person in the course of performing his/her duties, such act is deemed an act of the State, etc. and is still deemed to belong exclusively to the State, etc., and the public official's liability for damages incurred therefrom is not borne by him/her, thereby securing the stability of the public official's performance of duties. On the other hand, if a public official's illegal act is related to his/her duties, even if it is related to his/her duties, the above act cannot be attributed to the State, etc., and thus, he/she shall be held liable for damages caused by the illegal act of a public official. However, even if it is related to his/her duties, the State, etc. shall have the individual and the public official bear the responsibility for compensation for damages.

In doing so, Article 2 (2) of the State Compensation Act does not interpret it as to the responsibility of compensation for the state, etc. of a public official, and it is not related to the responsibility of a public official for the victim of a public official, and it is interpreted that a public official should be liable for damages to the victim even if a public official inflicted damage on another person due to the progress of performing his/her duties, if the victim claims damages against an individual of a public official, the state that the public official is liable for the damages is not liable for the damages, but the state that has performed the responsibility when the claim is made against the State, etc., cannot be claimed to the individual of the public official, and ultimately the public official is not liable for the damages. This result is unreasonable in that the ultimate owner of the liability for the damages is different according to the victim's voluntary choice, and it is impossible to realize the legislative intent of allowing the public official to ultimately exempt the public official's individual responsibility

On the contrary, if a public official who is obliged to serve on the citizen causes damage to the people intentionally or by gross negligence, if it is interpreted that a public official does not bear any liability for damages, it may not monitor or prevent a tort committed by a public official, but may result in an unreasonable result of excessive protection of a public official without any reasonable reason.

Therefore, when a public official causes damage to another person in the course of performing his/her duties, the public official's individual shall be liable for damages caused by a tort in addition to the state's liability for damages. However, if the public official is only in the past, it is a correct interpretation in harmony with the legislative intent of the main sentence and proviso of Article 29 (1) of the Constitution and Article 2 of the State Compensation Act.

In addition, if a public official's unlawful act was caused by the progress of his duties, it can be limited to the property right guaranteed by Article 23 of the Constitution from the perspective of the injured party who is the victim. However, in light of the above, the stability of the performance of public duties is for the public interest and the fact that the state's liability is recognized even if the individual responsibility is not recognized, and the requirements for recognition of the state's liability are mitigated compared to the employer's liability under the Civil Act, it is deemed that it falls under the scope of restriction of fundamental rights permitted under Article 37 (2) of the Constitution.

Furthermore, this legal principle is not different because it is a public official under Article 29(2) of the Constitution and the proviso of Article 2(1) of the State Compensation Act who is not entitled to claim compensation under the State Compensation Act except for compensation under the above proviso.

This is because Article 29 (2) of the Constitution provides that in the case of military personnel, civilian military employees, police officers, and other public officials provided by law (hereinafter referred to as "military personnel, etc."), the State, etc. shall not claim compensation for damages incurred in relation to the performance of their duties, such as battle and training, in addition to the compensation provided by law, and the proviso of Article 2 (1) of the State Compensation Act is followed and concrete, but it is reasonable to recognize the State's compensation for damages that military personnel, etc. received in relation to combat and training, etc., but it is reasonable to determine the compensation only

Therefore, the previous Supreme Court Decision 69Da701 delivered on October 10, 1972 held that a public official is liable for damages, regardless of the degree of a cause attributable to a public official, in case where a public official causes damage to a citizen by a tort in the course of performing his duties, and that a public official’s individual is not liable for damages regardless of the degree of a cause attributable to the public official, and all of the Supreme Court Decision 93Da11807 delivered on April 12, 199.

B. In this case, according to the reasoning of the judgment below, since the defendant driving a state-owned vehicle as a military unit and caused the traffic accident in this case in order to perform official duties, the operation of the above vehicle appears to be the case where the country to which the defendant belongs is liable pursuant to the main sentence of Article 29(1) of the Constitution and Article 2(1) of the State Compensation Act (On the other hand, where the non-party Hong Jong, who is the victim, is deemed to have died of the accident in the course of performing his duties, and the plaintiffs who are his bereaved family members are entitled to receive compensation pursuant to the Act on the Honorable Treatment, etc. of Persons of Distinguished Service to the State, etc. of the State Compensation Act, it shall not claim the State against the State pursuant to the proviso of Article 2(1) of the State Compensation Act, but this does not affect the recognition of the defendant's individual liability for damages as mentioned above.

Nevertheless, the court below did not discuss the degree of the reason attributable to the defendant and judged that the defendant individual is not liable for damages caused by the tort. The court below erred in the misapprehension of legal principles as to the public official's liability for damages by interpreting Article 29 (1) of the Constitution. Thus, there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices Kim Jong-soo, Kim Jong-sik, Justice Shin Sung-sung, and Justice Lee Yong-hun, Justice Lee Yong-sik, and Justice Park Yong-chul.

4. The separate opinion by Justice Kim Jong-soo, Justice Kim Jong-soo, Justice Shin Sung-sik, and Justice Lee Yong-hun is as follows.

The Majority Opinion explicitly stated that the proviso of Article 29(1) of the Constitution of the Republic of Korea explicitly stipulates that a public official who committed an official illegal act shall not be exempted from his/her individual responsibility, and that a public official not exempted from his/her personal responsibility includes all legal liability, such as civil, criminal, and disciplinary liability. In particular, I fully agree with the Majority Opinion stating that there is no ground to exclude the civil liability from the civil liability.

However, while interpreting the proviso of Article 29(1) of the Constitution excessively, on the other hand, it is difficult to see that the proviso of the above Article 29(1) of the Constitution provides that the scope of individual liability of a public official who committed a tort on duty is an issue of legislative policy, and there is no direct provision in the State Compensation Act. In this regard, the public official under Article 2(2) of the State Compensation Act recognizes the right to indemnity against a public official by the State or a public organization (hereinafter referred to as the "State, etc.") only when there is intention or gross negligence on the part of the public official under Article 2(2) of the State Compensation Act, and in the case of a progress, it is impossible to agree to interpret that the liability of tort due to the progress is excluded from the public official's responsibility under the proviso of

The reasons are as follows.

In other words, as the Dissenting Opinion points out, such interpretation is considered to be beyond the limit of interpretation of the Constitution regarding the express provision of Article 29(1) of the Constitution. First of all, there is a question with the Majority Opinion that it is difficult to regard the proviso of the above Article 29(1) as the scope of individual liability for damages of a public official. In relation to the main text, it is clear that the individual liability of a public official under the proviso of the above Article 29(1) is the responsibility of tort of a public official who committed a tort in the course of his duties. The concept of tort is a legal concept, which means that it causes damage to another person due to an intentional or negligent act, and there seems to be no room to raise a question in the general theory that does not distinguish the gross negligence from the past. If the concept of "the negligence" under our legal system includes the concept of "the gross negligence" and it is necessary to distinguish the two, the concept of "the responsibility of a public official under Article 2(2) of the State Compensation Act, the Act on the Liability for Fire, or the penal Act." Therefore, the concept of the proviso of Article 75(2).

Next, the majority opinion does not raise any objection to interpret the express provisions of the Constitution as a superior corporation with the legislative intent of the State Compensation Act. In general, the subordinate law should not conflict with the upper law and should not be interpreted as a violation of the upper law and the legislative intent of the subordinate law. On the contrary, it is difficult to interpret the upper law in accordance with the legislative intent of the subordinate law.

Furthermore, there is no doubt that the legislative intent of Article 2(2) of the State Compensation Act is securing the stability and efficiency of the performance of duties of public officials. However, the above provision is not clear in light of the fact that the purpose of the State Compensation Act is to regulate only the relationship between the State, etc. and the public officials, and that it is not to regulate the relationship between the State, etc., the compensation procedure, and the victim and the victim, and it is not to regulate the relationship between the public official and the victim.

In addition, the majority opinion interpreted Article 2 (2) of the State Compensation Act to recognize the individual responsibility of the victim in the event of a progress room only with the provision on the liability for compensation between the State and the public officials, if it is interpreted to recognize the individual responsibility of the victim, the ultimate owner of the liability for compensation depending on the victim's voluntary choice, but in the case of intentional or gross negligence, the ultimate owner of the liability for compensation is different depending on whether the State, etc. exercises the right to indemnity. This is a result of a dispute between the State and the State, which is exempted from the right to indemnity in the case of a progress room, thereby securing stability in the performance of public duties and gaining the direct anti-private profit by exempting the right to indemnity in the case of a progress room. Therefore, it is not necessary for the State, etc. to solve the problem by the method of compensating the amount of compensation, but to transfer the disadvantage to the victim who has no direct anti-private interest. It is not reasonable to interpret the express provisions of the Constitution as a superior law with the legislative intent of the above subordinate law, and to limit the exercise of rights

In addition, unlike the provisions of Article 29(1) of the Constitution and the proviso of Article 2(1) of the State Compensation Act, the Dissenting Opinion, unlike the provisions of Article 756(1) of the Civil Act, stipulates an unconditional liability of the State for a tort on official duty of this public official, is intended to actively and actively promote public officials by exempting an individual victim from liability for remedy for damages. Therefore, the proviso of Article 29(1) of the Constitution provides that an individual victim who committed a tort on official's own responsibility shall be excluded regardless of the seriousness of the elements of liability and shall not be exempted from the internal liability of the public official. However, such interpretation is contrary to the provision of Article 29(1) of the Constitution and the proviso of Article 29(1) of the State Compensation Act that does not explicitly stipulate an individual's liability for damages on official duty of the public official in Germany, and it is thought that the German legal theory and precedents that do not recognize an individual's liability for damages under the proviso of the Civil Act and the dissenting opinion that do not have been applied to the foregoing.

The majority opinion and the dissenting opinion agree with the majority opinion, even though the victim is sufficiently and sufficiently compensated by the state sufficient compensation ability and there is no need to receive compensation against the individual public officials, it is not likely that the public officials will lose their will by filing unnecessary lawsuits. However, in case where it is necessary to prevent the abuse of rights in individual cases by considering whether the exercise of such rights constitutes abuse of rights, it is well known that the exercise of such rights is derived from the consideration of the state's financial situation, and the contents are excluded from the victim's right to claim against the State, and it does not exclude the victim's right to claim against the public officials, and it does not exclude the victim's right to claim against the public officials. As such, in Germany, where the State enacted the responsibility of subrogation as mentioned above, Article 839 of the German Civil Act recognizes the individual responsibility of the victim for subrogation if the State does not assume the responsibility of subrogation against the victim.

Furthermore, the State Compensation Act provides for the State or local government's liability for tort in the course of performing duties, and the interpretation of the State Compensation Act does not constitute a reasonable reason to exempt the public official from liability for damages caused by illegal acts by the passage room of public officials recognized under the Civil Act. The same applies to cases where a public official is liable for damages due to an accident caused by the public official's driving of his/her own motor vehicle and performing his/her duties. The same applies to cases where a public official is liable for damages pursuant to the provisions of the Guarantee of Automobile Accident Compensation Act. If a public official's personal liability is exempted due to an accident caused by the passage room of the operation, if a public official's personal liability is exempted, an insurance company will not be held liable for the compensation liability. Accordingly, the State Compensation Act cannot be concluded as an unreasonable result that prevents the victim's easy loss and makes it difficult for an insurance company to take the part of the State's liability as above. On the contrary hand, the relationship between the State and a public official under the Act on the Guarantee of Automobile Accident Compensation and the State Compensation Act cannot be concluded as an insurer.

In the past room, the majority opinion recognizes that the denial of the individual responsibility of a public official would be a restriction on the property right guaranteed by Article 23 of the Constitution from the perspective of the victim, but it is necessary for the public interest, such as the stability of the performance of public service, and it falls under the scope of the restriction of fundamental rights permitted by Article 37(2) of the Constitution. However, even if the stability of the performance of public service belongs to the public interest, it is legitimate to execute public service, and it is not clear that the stability of illegal performance of public service is not consistent with the public interest, and that the victim suffers loss due to illegal performance of public service. On the contrary, the increase of the financial burden of the State will result in a violation of the public interest. In addition, even if necessary for the public welfare, it is reasonable to say that the restriction of the fundamental rights of the citizens should be a law, and it is necessary to limit it by interpretation without such a law.

The illegal act system is not limited to the fair and reasonable burden and distribution of damages, but is not limited to the purpose of preventing the illegal act, that is, the defense function should not be neglected, and from the point of view of the rule of law, it is important not only to emphasize the stability of the execution of public duties, but also to secure the legality of the execution of public duties.

In short, the interpretation that the liability for damages against the victim of a public official is not exempted in the case of a tort caused by a public official's occupational progress in light of the history of the relevant provisions of the Constitution of the Republic of Korea, not only is faithful, but also is interpreted in accordance with the spirit of guaranteeing fundamental rights and the ideology of the rule of law.

Therefore, the previous precedents, such as Supreme Court Decision 69Da701 delivered on October 10, 1972, should be maintained, and the different opinions should be modified by the Supreme Court Decision 93Da11807 delivered on April 12, 1994, and the judgment of the court below should be reversed accordingly.

5. Dissenting Opinion by Justice Ahn Yong-sik and Justice Park Jong-chul is as follows.

A. The majority opinion and the Concurring Opinion clearly interpret that the proviso of Article 29(1) of the Constitution does not exempt a public official from liability for damages that he/she committed on his/her duty.

However, in light of the fact that the proviso of Article 29 (1) of the Constitution is merely a "liability" but does not specify "private liability" or "liability", and that Article 7 (1) of the Constitution provides for the responsibility of public officials to the people, it cannot be readily concluded that the "liability" under the proviso of Article 29 (1) of the Constitution includes civil liability for damages.

In particular, if a public official commits a tort in the course of performing his duties, if the public official is in the position of the representative body of the State or a public organization, the illegal act is immediately an act of the State or a public organization, and the State or a public organization is liable for its own act. Thus, the public official is not liable for damages unless there is a separate special provision that recognizes his liability for damages. Furthermore, as long as the state or a public organization is liable for damages sufficient enough to have the person liable for damages, the public official is not required to be held liable for damages overlappingly to the public official for the protection of the victim. Meanwhile, unlike the above, if a public official who committed a harmful act is not in the position of the representative body of the State or a public organization, the State or a public organization is not liable for damages under the provisions of Article 29(1) of the Constitution and Article 2(1) of the State Compensation Act, and ultimately, the State or a public organization is not liable for damages more actively than that of the State or a public organization.

Although the majority opinion or the separate opinion emphasizes that a public official who committed a tort in the course of performing his/her duties can be held liable for damages, the compensation system is essentially significant in compensating for damages, and the suppression of illegal acts is merely an incidental function in accordance with the implementation of liability for damages, and it does not affirm the public official's individual liability for damages under the pretext of securing the legality of the execution of official duties. It is not necessarily necessary to recognize the public official's liability for damages in order to secure the legality of the execution of official duties. Rather, if a public official who committed a tort in the course of performing his/her duties is liable for damages against the victim, such as the majority opinion or the separate opinion, it is difficult to prevent the public official from causing the public official's desire to perform his/her duties and it is also difficult to prevent the administrative affairs from being determined due to the decline of his/her official duties, and there is no reason to see that there is any harm caused by the public official who filed a lawsuit by causing an unnecessary action arising from the private appraisal or unsound motive.

Therefore, the proviso of Article 29 (1) of the Constitution shall not be deemed to stipulate that a public official who committed an official act shall not be exempted from liability for damages. However, it shall be deemed that the proviso of Article 29 (1) of the Constitution provides that a public official who committed an official act shall not be exempted from liability for internal responsibility.

B. In particular, the majority opinion argues that the proviso of Article 29 (1) of the Constitution explicitly stipulates that the liability of an individual public official who committed a tort on duty shall not be exempted, but that the issue of determining the scope of liability of an individual public official is a matter of legislative policy. However, if a public official's unlawful act was committed due to the progress of the State's illegal act, the act is assessed as a legal act, and it does not constitute an act of a public official, and thus, a public official does not have the initial liability for damages. On the other hand, if a public official's unlawful act was committed with intentional or gross negligence, it cannot be attributed to the State, etc., because it is in essence a loss of dignity as an act of an agency, and thus, it cannot be attributed to the State, etc., and the State, etc. shall bear the liability for damages to a public official in overlapping with an individual public official,

However, while the majority opinion clearly states that the proviso of Article 29 (1) of the Constitution does not exempt a public official from liability for damages, the scope of exempted liability is a problem of legislative policies, not only lack logical consistency but also lack of the normative significance of the Constitution, which is the highest law, and thus, it cannot be pointed out that it goes beyond the limit of interpretation of the Constitution because it does not fall short of the limit of interpretation of the Constitution. Furthermore, even though the status of public officials or the contents of duties in charge are extremely diverse, it is too deemed that all public officials are in the status of the state or public organization, and their acts are evaluated as acts of the State, etc., as they are in the status of the state or public organization. In light of the fact that the distinction between past and latter gross negligence is nothing more relative, it cannot be understood that if a tort committed by a public official on duty belongs to the State, etc. only in the past, and it can not be attributed to the State, etc., because it loses its dignity as an institutional act.

C. In conclusion, in a case where a public official commits a tort in the course of performing his duties, only the State or a public organization is liable for damages against the victim under the State Compensation Act, and the public official is not liable for damages against the victim even if there is an intentional or gross negligence. Accordingly, the purport of the Supreme Court Decision 93Da11807 Decided April 12, 1994 should be maintained as it is.

Justices Park Jong-chul shall set forth in the Dissenting Opinion as follows.

The first tort system is a system seeking the fair and reasonable burden and distribution of damages that occur in social life, and basically deals with the problem of who is responsible for the damage of the victim, and it is distinguished from the system of criminal liability or disciplinary responsibility that imposes the responsibility of the offender for the purpose of preventing the same kind of accidents in the future.

The interpretation of the law on the state liability and the individual responsibility of public officials should also be done in consideration of such basic principles, the legal status of public officials, and the harm of emotional abuse.

If a public official who shall work faithfully for the public interest causes damage to the people during the performance of official duties, a public official who is a service employee shall be liable for damages on behalf of the public official in lieu of neglecting the conflict relationship so that the public official can be punished by direct litigation with the victim who is a service employee, and the State shall be held responsible in the form of recourse only in cases where the public official has intentionally or gross negligence according to the contents of non-performance of official duties, and it shall be interpreted as the purpose of the proviso of Article 29(1) of the Constitution and Article 2(2) of the State Compensation Act to secure the public official's good faith and the performance of official duties in the form of recourse.

If we understand the proviso of Article 29(1) of the Constitution, as the majority opinion, to the effect that an individual is not exempted from liability for damages of a public official, the individual public official shall not be exempted from liability for damages as well as intentional or gross negligence in accordance with the general legal principles of tort. It is consistent in its own logical and logical sense with the view that an individual, such as a director or an employee, in the case of an accident involving a corporation’s tort liability or a corporate employer liability, can be the same as in the case

On the other hand, there is no logical and inevitable relationship between the issue of whether the nature of the State's liability is considered as a self-responsibility or as a subrogation liability, and whether the public official's personal responsibility is recognized as well as the State's liability. Thus, as in the Majority Opinion, the conclusion of denying the public official's personal responsibility is not naturally derived only in the case of intentional or gross negligence and the transitional negligence.

The majority opinion argues that if a public official inflicts damage on another person due to the progress of the public official's performance of duties, even if the specific behavior is conducted by a public official, it is still evaluated as an act of the State, etc. under law, and it is not evaluated as an act of a public official. If a public official's unlawful act is based on an intentional or gross negligence, it shall not be attributed to the State, etc., but shall be liable for it concurrently with an individual of a public official. However, if a public official's unlawful act is based on a public official's intentional or gross negligence, it shall be judged that the public official's unlawful act is assessed only as an act of the State, etc., depending on the degree of the intention or negligence, or that the public official's act is assessed only as an act of the public official, etc., or that the public official's act is assessed as an individual's intentional or gross negligence, it shall not be considered as an administrative disposition, and it goes against the existing theory of the administrative law.

On the other hand, if it is deemed that a transitional room does not exempt a public official from the responsibility of an individual as in the case of a transitional room as shown in the separate opinion, it shall not be claimed by a public official even if the State compensates for the damages, so if a public official who committed an illegal act in a transitional room compensates the victim, it shall be deemed that the State can claim compensation against the State in accordance with the principle of equity. However, if a person with no negligence suffers damage due to an accident in the course of performing his/her duties, the State, etc. under Article 29(2) of the Constitution and the proviso of Article 2(1) of the State Compensation Act where a soldier, etc. suffered damage due to an accident in the course of performing his/her duties, the public official who committed such an illegal act cannot claim compensation against a person who is not a soldier, etc., even if he/she compensates for damages to the victim, it shall not be in line with mutual balance, and in the above case, the perpetrator shall be the same military person, etc., as seen in this case.

Therefore, it should be understood that the proviso of Article 29 (1) of the Constitution of the Republic of Korea stipulates that the liability of an individual victim of a tort shall not be wholly or partially exempted, but it shall not be exempted from the internal responsibility of an individual public official.

However, notwithstanding the above interpretation, if a public official has paid a traffic accident in connection with his/her duties, it shall be deemed that the liability for damages as the so-called risk liability under the Guarantee of Automobile Accident Compensation Act as the owner of an automobile who is not the negligence liability

As a reference, it is pointed out that it is not only the common view of the administrative law academic circles of our country, but also the German and Japan, which is a continental legal system country such as our country, has already been settled as a common theory and precedent.

The problem is whether it is reasonable to deny a separate claim for damages against public officials in the case that a soldier, etc. is not able to claim damages against the State, etc. under Article 29(2) of the Constitution and Article 2(1) proviso of the State Compensation Act.

I think, soldiers, etc. are highly likely to face an accident in the course of performing their duties due to the unique characteristics of their duties, so it is the purport of Article 29 (2) of the Constitution that the State will take over the risk of an accident in the course of performing their duties and treat the victims as persons who have rendered distinguished services to the State, and resolve the accident with compensation by comprehensively considering the veterans' level, not compensation.

If the above provision of the Constitution intends to deny the State's compensation only for an accident during the performance of duties of military personnel who is highly likely to cause an accident, and to impose liability for damages on the same military personnel who is the perpetrator in the case of such accident, the ethics of our Constitution itself is a problem.

Therefore, the compensation under the above provision of the Constitution shall be based on a comprehensive consideration of the contents of the compensation, and if that is not possible, a soldier, etc. shall be subjected to disadvantageous treatment by being recognized as an accident during the performance of his/her duties, and thus, he/she shall be entitled to remedy the right due to a litigation on the ground that the contents of the compensation are in violation of the Constitution. In such a case, it is impossible to deem that a direct claim for damages against a public official is denied even in such a case.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice)