Whether the State liability due to a public official’s omission can be recognized even if the Act and subordinate statutes expressly stipulate the duty of a public official to act (affirmative with qualification) and the criteria for such determination

[1] Article 2 (1) of the State Compensation Act

Supreme Court Decision 98Da18520 Decided October 13, 1998 (Gong1998Ha, 2665) Supreme Court Decision 2000Da57856 Decided April 24, 2001 (Gong2001Sang, 1202)

Samwon Air Co., Ltd. (Law Firm Chungcheong, Attorneys Park Yong-ok et al., Counsel for the defendant-appellant)

Korea

Seoul High Court Decision 2002Na7123 delivered on August 13, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the grounds of appeal Nos. 1 through 3

A. For the purpose of recognizing state liability due to a public official’s omission, the requirements of Article 2(1) of the State Compensation Act, which provides that a public official “if a public official causes damage to another person by intention or negligence because he/she was responsible for performing his/her duties,” should be met. Here, “in violation of the relevant Act and subordinate statutes” do not mean only a violation of the duty of a public official explicitly provided for in the Acts and subordinate statutes within the strictly formal meaning, and it does not mean only where the State whose primary mission is to protect the lives, bodies, property, etc. of the people is to protect the lives, bodies, property, etc. of the people, unless the State is able to protect the lives, bodies, property, etc. of the people unless it comes to the exclusion from such danger, unless there is a ground for the formal meaning of the Act and subordinate statutes, it shall be recognized that a public official is obliged to act against the State or the relevant public official and thus, it shall not be determined that the public official violated the duty of a public official’s act or omission is 80.5.

B. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the public officials in charge of granting the permission to occupy and use of this case can be revoked due to such circumstances, and that there is a possibility to remove a newly constructed airfield, etc. on the land of this case, by informing the Plaintiff of the circumstances that the land in the attached list of the judgment below owned by the plaintiff (hereinafter referred to as "land in this case") was included in the river project, and cannot be said to have a duty of care to avoid damage caused by the construction of the airfield, etc. in accordance

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations, there were no errors in the misapprehension of legal principles as to the state liability for compensation, or in incomplete deliberation or inconsistent reasoning.

2. As to the fourth ground for appeal

According to the reasoning of the judgment below, the court below determined that the Seoul Regional Land Management Agency announced the additional project approval in the Official Gazette on May 26, 1997 with the approval of the project that additionally incorporate the land of this case into the river project.

However, when examining the protocol of additional project approval announced in the Gyeonggi-do Newsletter (Records 63 pages) dated May 26, 1997, the court did not publicly notify that the land in this case enters a river project site, and there is no other evidence to recognize it even if examining the record, the court below erred by misapprehending the facts against the rules of evidence.

However, unless the Minister of Construction and Transportation has a duty to notify the public official in charge of the permission to occupy and use the river project of this case to the plaintiff, the issue of whether the land of this case actually entered the river project site of this case in the Official Gazette does not affect the conclusion that the tort due to the omission by the public official is not constituted. Thus, the above error by the court below does not affect the conclusion of the judgment.

Therefore, the ground of appeal No. 4 cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)