도로하자로 인한 손해배상에 관한 연구 = (A) Study on the Compensation for Damages Caused by Defects in the Public Roads

다국어 초록 (Multilingual Abstract)

In the administrative law, roads are public objects which are commonly used for public purposes so their legal relationship is regulated by the public law. Especially, it is legally stipulated that damages caused by any defects in the installation or the management of roads should be handled in accordance with the State Tort Liability Act. At present, the cases of national compensation for the defects of roads have several problems in some aspects. First, theoretically, there is sharp confrontation because it is seen that the substantial law of the cases of national compensation is based on only the article 5 of the State Tort Liability Act, disregarding the article 2 of the Act. Any defect of roads can be seen as a problem of the article 5 of the Act in that the roads are public objects, but from the viewpoint of the subject of public officials who install or manage the public object of roads, it can be a problem of the article 2 of the Act so both the article 2 and the article 5 are applicable. That is, the significance of the defects based on the article 5 of the Act has no influence on existence and inexistence of damages caused by the defects of roads even though it is interpreted by the objective theory. In terms of practical affairs, the cases of damages caused by the defects of roads are handled as a civil suit, not parteiprozess, based on the public law so they have a tendency of practical affairs familiar with the suit for damages, such as liability with fault. That is, in the liability for damages caused by the defects of roads, there is a tendency that liability with fault and liability without fault are not strictly separated, and a subjective aspect, such as a possibility of road managers` foresight or evasion, is seen as an element for judgment of a flaw. Secondly, the defects of roads are too strictly acknowledged, through which the intention of the State Tort Liability Act to save people`s rights and interests tends to be disregarded. National compensation for the defects of roads has a lot of characteristics compared with the general national compensation cases. First, the same type of accidents is continuously repeated so it is possible to pattern the defects. That is, it means that it becomes possible to apply the existing theoretical confrontation, which has remained in the abstract discussion when the defects of public institution are mentioned, to a concrete flaw pattern. This paper intends to suggest a standard for the cases related with the defects of roads by patterning and analyzing each case discussed in Korea. The work of patterning the defects of roads needs to be continued in the future, through which it will be necessary to establish the standards for the judgment of defects by flaw pattern. Secondly, the suit for road defects is a technical and professional field same as the suit for medical faults or the suit for environmental pollution so it tends to excessively strictly request a victim to prove a fault in the installation or the management of roads. Therefore, in terms of the liability for proof, easing or reducing the liability for proof, which has been discussed in other fields of suits, needs to be actively introduced to the suit for road defects. The suit for road defects has the characteristics of parteiprozess, but it is handled as a civil suit. However, the civil suit is short of the speciality in the field of the public law (road management relationship) or of the process against the administrative suits so it has some problems in saving a victim`s rights and interests. In this respect, it will be necessary to change the current practical affairs of the suit to parteiprozess. In the revision draft of the administrative suit law which has been recently announced to be legislated, an article of exemplifying a pattern of national compensation, damages caused by illegal disposition, as parteiprozess has been newly prepared. However, this article doesn`t contain all the patterns of nat