[손해배상][공1982.1.15.(672),63]
Whether the head of a local government (Do Governor) who delegated or processed national administrative affairs (related to reclamation of public waters) is liable to compensate for the illegal act committed by the head of the local government (negative)
Unless there are other circumstances, the head of a local government is liable for damages for illegal acts of the head of the local government, unless there are other reasons, the local government is responsible for the duties of the head of the local government; the State is responsible for the duties of the State entrusted to the local government; the duties of the State as a general local administrative agency; and therefore, Gyeonggi-do is not responsible for the illegal acts of the head of the local government.
Article 2 of the State Compensation Act, Article 102 of the Local Autonomy Act, Article 9 of the Public Waters Reclamation Act
Supreme Court Decision 65Da2257 delivered on January 25, 1966, 66Da2309 delivered on February 21, 1967, and 68Da295 delivered on April 6, 1968, and 70Da347 delivered on May 12, 1970, and 80Da20 delivered on May 26, 1981
Plaintiff
Attorney Lee Jae-ho, Counsel for the branch office of Gyeonggi-do
Seoul High Court Decision 79Na2639 delivered on August 25, 1980
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the Plaintiff’s ground of appeal.
The Do Governor represents the Do as the head of the Do, which is a local government, and is in the position of the executive organ of the local government (Do) with the authority to manage and execute the affairs of the Do and the affairs delegated to the Do under the statutes (Articles 101 and 103 of the Local Autonomy Act). Meanwhile, the State administrative affairs implemented to the Do are delegated to the Do Governor unless otherwise provided for in the statutes (Article 102 of the Local Autonomy Act). The Do Governor also holds the status of the State's ordinary local administrative agency. Therefore, unless the Do Governor's liability for damages for illegal acts in the course of performing his duties is different, the Do as the executive organ of the local government is the Do, and the State is responsible for the duties of the State administrative agency.
According to the documentary evidence, etc. adopted by the court below in this case, each return of the license for reclamation of public waters of this case, application for extension of the completion period and application for change of purpose of the reclamation of public waters of this case by the plaintiff's assertion is a disposition made by the Gyeonggi-do Governor. Since the affairs of the reclamation of public waters of the Gyeonggi-do are managed with the delegation of part of the national administrative affairs under the jurisdiction of the Minister of Construction and Transportation, the affairs of the Do Governor are the affairs of the Do Governor as the national administrative agency. Therefore, the defendant, a local government, is not responsible for the illegal act in the course of performing his duties. Accordingly, the plaintiff's claim of this case under
Therefore, even if the reasoning of the court below differs, the decision of the court of first instance that rejected the plaintiff's claim is eventually justified in the conclusion, and all arguments premised on the defendant's responsibility cannot be accepted in other opinions.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jung-tae (Presiding Justice)