The case holding that the State's liability cannot be recognized in a case where the state's liability for compensation is sought, where it is asserted that a male has suffered property and mental damage due to the enactment of the former Enforcement Decree of the Guarantee of Automobile Accident Compensation Act, which provides for a disability grade by discriminating against female more disadvantageously.

In a case where the mother claims that a male suffered property and mental damage due to the enactment of the former Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (amended by Presidential Decree No. 18286, Feb. 21, 2004) which provides for disability grades by discriminating against female more disadvantageously, and the state compensation is sought, the case holding that, on the ground that the above Enforcement Decree was amended on February 21, 2004 in accordance with the National Human Rights Commission's recommendation for amendment, it is insufficient to regard that the above Enforcement Decree was clearly contrary to the principle of equality under the Constitution, and it is difficult to view that there was an illegal act or negligence by the relevant public officials during the enactment process of the above Enforcement Decree.

Article 11 of the Constitution; Article 5(1) of the Guarantee of Automobile Accident Compensation Act; Article 3(1)3 of the former Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (amended by Presidential Decree No. 18286, Feb. 21, 2004)

Plaintiff

Korea

Jeonju District Court Decision 2008Gaso21835 Decided August 27, 2008

April 15, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 19,00,000 won with 6% interest per annum from May 5, 2002 to the sentencing day, and 20% interest per annum from the next day to the full payment day.

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff falling under the order to pay is revoked. The defendant shall pay to the plaintiff 11,00,000 won with 6% interest per annum from May 5, 2002 to the sentencing day, and 20% interest per annum from the next day to the full payment day.

1. The plaintiff's assertion

The plaintiff asserts that the defendant did not change the insurance money until February 21, 2004 by enacting the Enforcement Decree of the Guarantee of Automobile Accident Compensation Act [Attachment 2], which provided that the disability grade of the non-party company's individual automobile insurance contract (hereinafter "non-party company") is more unfavorable than that of the male if the defendant remains scarbly in violation of the principle of equality under the Constitution, and provided that the disability grade is determined by the classification of 7 grade 12 and 12 grade 13, hereinafter the above provision; the limit of insurance money, etc.; the above Enforcement Decree before amendment of the Voluntary Disability Compensation Act was amended by Presidential Decree No. 18286, Feb. 21, 2004; hereinafter "the Enforcement Decree before amendment of the Voluntary Disability Compensation Act") and did not change the insurance money until the amendment of the contract. Since the defendant's Financial Supervisory Service had the non-party company ("non-party company") pay the insurance money to the non-party company's individual automobile insurance contract with 000 won and damages.

2. Facts of recognition;

The following facts are either not disputed between the parties, or acknowledged in full view of the purport of the entire arguments in Gap evidence Nos. 1 through 6, 17 through 21, and Eul evidence Nos. 1 and 2, and there are no other counter-proofs.

A. On May 5, 2002, the Plaintiff left the road bended by the seat of the road while driving the vehicle (hereinafter vehicle number omitted) while driving the vehicle, and suffered bodily injury, such as cage cages and dump damage, etc. due to the shocking traffic accident of the former owner. On October 23, 2002, the Plaintiff was a sexual surgery on Non-Party 2, 2002 at the inner level from Non-Party 2 on November 30, 2002, on the part of Non-Party 2, the Plaintiff was judged to have a chronic disability from Non-Party 2 on November 30, 2002.

B. On March 22, 2002, the Plaintiff filed a claim for the insurance benefit of a subsequent disability with respect to the Non-Party Company for the “salvance of the multi-salvance of the front side surface” according to the comprehensive personal vehicle insurance contract (such as large-sized I, II, son, self-physical accident, etc.) entered into between the Non-Party Company and the Non-Party Company (hereinafter “instant insurance contract”).

C. In relation to the non-party company's personal automobile insurance clause applicable to the insurance contract of this case (hereinafter "the insurance contract of this case"), "the table of classification of post-treatment disability and the amount of insurance coverage for each grade" in [Attachment Table 3] provides that "the insurance money shall be differently paid according to the disability grade, and the disability grade shall be determined according to the classification of post-treatment disability as prescribed by the Enforcement Decree before the amendment of the Act." Meanwhile, [Attachment Table 2] [Attachment Table 2] (Newly inserted on August 1, 1980) before the amendment of the Act provides that "the disability grade for any female with a significant chest in the appearance shall be Grade 7 (No. 12), and the female with a significant chest in the appearance shall be Grade 12 (No. 13). The plaintiff paid the insurance coverage amount in the case of self-physical accident of this case to Grade 7,12,000,000 won, and the disability grade shall be 300,000 won after the amendment of the Act.

D. On December 12, 2002, the Plaintiff filed a financial dispute mediation with the Financial Supervisory Service. On January 7, 2003, the said Financial Supervisory Service sent a reply to the effect that “It is difficult to deem that the payment of residual disability insurance money, etc. to the Plaintiff by a company outside the country is unfair in accordance with the above terms and conditions, and that the part related to the disability grade of women and men related to the disability grade of women and men shall not be simple by the Financial Supervisory Service as matters under the jurisdiction of

E. On January 8, 2003, the Plaintiff filed a petition with the National Human Rights Commission of Korea (the case of goods discrimination by gender No. 2003 J. 5). Accordingly, on July 4, 2003, the National Human Rights Commission of Korea rendered a decision to recognize that the part concerning physical disability remaining with a chest in appearance is a discriminatory act against male victims under Article 11 of the Constitution, and to recommend the Minister of Construction and Transportation, the respondent, to revise the said part to ensure that there is no discrimination against gender.

F. On February 21, 2004, the amendment of the Enforcement Decree prior to the amendment (Presidential Decree No. 18286, Presidential Decree No. 18286), and among them, the amendment of class 7 subparagraph 12 of class 7 of class 2 of the above [Attachment 2] was made to “a person who remains with a significant chest in the mother”, deleted class 12 subparagraph 13, and Article 3 [Attachment 2] of the Enforcement Decree was made to enter into force on August 22, 2004.

3. Determination

(1) A member of the National Assembly cannot be deemed to constitute an unlawful act under Article 2(1) of the State Compensation Act unless the legislative content clearly violates the legislative content of the National Assembly, unless it is a special case like the pertinent legislative act (see Supreme Court Decision 96Da56115, Jun. 13, 1997, etc.). Meanwhile, as the State is recognized to recognize the State liability due to a public official’s omission, Article 2(1)5 of the State Compensation Act provides that “When a public official inflicts damage on another person by intention or negligence in violation of the statutes,” it shall meet the requirements of Article 2(1)5 of the State Compensation Act, which provides that “if a public official violates the law and regulations, it shall be deemed that a public official violates the law and regulations, and thus, it shall not be deemed that there is a serious danger or harm to the public official’s life, body, property, etc., and it shall not be deemed that there is a serious danger or harm to the public official’s duty to act.” It shall not be deemed that there is a serious danger or risk to the public official’s life.

(2) Whether the main contents of the Enforcement Decree prior to the amendment of the Voluntary Act clearly violate the principle of equality under the Constitution, and whether there was an unlawful act committed by the Defendant or relevant public official in the process of its enactment

The key issues of the former Enforcement Decree before the amendment of the Voluntary Act are that mental suffering and restriction caused by the physical disability of the appearance of a woman is greater than that of a woman, considering the situation of the social and cultural age that the above provision on physical disability grade with a chest remaining after the appearance of a woman can be seen differently depending on gender, and its rationality is reasonable. Therefore, the contents of the above key issues cannot be deemed to violate the principle of equality under the Constitution. However, it is insufficient to recognize that the main issues of the former Enforcement Decree before the amendment of the Voluntary Act are clearly in violation of the principle of equality under the Constitution, just because the above decision was made by the National Human Rights Commission of Korea. In addition, there is no decision made by the Supreme Court as to the key issues of the former Enforcement Decree before the amendment of the Voluntary Act as unconstitutional.

Furthermore, there is no evidence to acknowledge that the Defendant’s relevant public official knew or could have known that the contents of the main provision of the Enforcement Decree prior to the amendment of the Voluntary Act are clearly in violation of the principle of equality under the Constitution, but instead, by negligence enacted the said provision. Moreover, there was no reason to prove that there was an error of neglecting it, even though the Defendant or relevant public official could have predicted and avoided the fact that there was a risk of imminent and serious danger to the property, etc. of the people unless the said provision was repealed or amended.

(3) Difference between the Plaintiff’s damage and the issues of the Enforcement Decree prior to the amendment of the law

The former Enforcement Decree [Attachment 2] applies to the liability insurance or liability deduction to which a “motor vehicle owner” should subscribe pursuant to the provisions of Article 3(1)3 of the Enforcement Decree of the Act and Article 5(1) of the Guarantee of Automobile Accident Compensation Act. Thus, as in the case of this case, there is no evidence to deem that the agreement on the insurance proceeds from the aftermathal accident, which is included in the comprehensive motor vehicle insurance which is voluntarily subscribed by an insured, is enforced (for the sole reason that the terms of this case is subject to examination and authorization by the Defendant’s Financial Supervisory Commission, it is insufficient to recognize that the above provision was enforced). However, in light of the fact that the non-party company made the terms of this case with reference to this, and the Plaintiff signed the insurance contract of this case with the non-party company, even if the Plaintiff suffered damage due to the discriminatory terms of this case, it is difficult to recognize causation with the main provisions of the former Enforcement Decree of

(4) Conclusion

Therefore, as long as it is difficult to recognize the unconstitutionality of the former Enforcement Decree prior to the amendment and the illegal act of the defendant or related public official and the causal relationship, it is difficult to accept the plaintiff's assertion without any need to examine further.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yang Jin-soon (Presiding Judge)