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Ⅰ. Preface
As we all know, Contents or commentaries of the state compensation law have been delt with many scholars and even published through text book and thesis etc by the jurisdictional works under the title of "all matters on the state compensation system thesises collected in Jun of 1991.
Here, I'd like to discuss more the subject which has not been dealt much or still involved with many problems.
Ⅱ. The subject of state compensation.
Article 29-1, constitutional law provided for a state and local governments for the subject of compensation but the state compensation law stipulated for the state and the local governments therefore, the state compensation law, by designating as a state and local community, placed its responsibility on the illegal act on-job of official who charges in the public association(Public/social group) the public foundation and the public facilities of the public organizations for an error of the facilities controlling by them.
There were assertions that the provisions of the law was violated to the constitutional law or it should be included to the local community and the public corporations, however, of course, the past time of establishment of the law and present as well was disadvantaged when it was applying to this state compensation law, therefore a responsibility of damadge compensation of those groups were hopeful to apply civil law so that this was leagal to the constitutional law to apply with civil law.
Ⅲ. A subject on compensation.
In case that state and local governments should compensates upon a nature of when it only considers the substitutional responsibily so there is a view to be expounded that state and local governments is right of compensation.
However, a nature of it can be entirely considered to demand to the appropriate official whether it would be responsible responsible for self-reliability due to violate the duty contract between state and local governments and the related public offices. Also there is an oppinion to expound it that state and local governments would have a rights of compensation only a nature of responsibility is considered to the substitutional responsibility.
Ⅳ. Void valicity period of the state demand compensation rights.
Article 8, of the state compensation law is provided in civil law except for this law relating to the responsibility for compensation of state or local governments, but only as far as other provisions are concerned, and beside of the civil law should be followed it.
According to this, it is devided into 2years and 10 years of article number 776 of the civil law. There were an oppinions the same idea and 3 years and 3 tears separately: It is depends on a case in a judicial precedent.
I think it was proper to consider as 3 years and 5 years.
Ⅴ. Requirement for prior dicision by compensation committee
In past, to make compensation to state and local governments, first of all, applys to the local governments, and after passing through the compensation deliberation council and then applys to the civil court, however, it was amended on 29th Dec, 2000 and through the compensation deliberation council and applys it to the court without getting the dicision.
Ⅵ. A nature of period provisions.
As we all know, when the council has accepted an application of compensation, it must be decided within 4 weeks(State compensation law, 13-1) and also the case record posting is to be decided 4 weeks(Law, 13-11). These all provisions are pertaining to period of instructions, consequently, although a period of decision is over is still valid to relations of people, but only in case that other validity was provided or period-violated official internally were reprimanded is another question.
Ⅶ. Legislative theory.
As I said in front page, the phrases used in law-making in past is regretful. When it took the indispensible decision prepositionism is past, changing from the indespensible decision prepositionism to the optional decision preposition.
As we all know, Contents or commentaries of the state compensation law have been delt with many scholars and even published through text book and thesis etc by the jurisdictional works under the title of "all matters on the state compensation system thesises collected in Jun of 1991.
Here, I'd like to discuss more the subject which has not been dealt much or still involved with many problems.
Ⅱ. The subject of state compensation.
Article 29-1, constitutional law provided for a state and local governments for the subject of compensation but the state compensation law stipulated for the state and the local governments therefore, the state compensation law, by designating as a state and local community, placed its responsibility on the illegal act on-job of official who charges in the public association(Public/social group) the public foundation and the public facilities of the public organizations for an error of the facilities controlling by them.
There were assertions that the provisions of the law was violated to the constitutional law or it should be included to the local community and the public corporations, however, of course, the past time of establishment of the law and present as well was disadvantaged when it was applying to this state compensation law, therefore a responsibility of damadge compensation of those groups were hopeful to apply civil law so that this was leagal to the constitutional law to apply with civil law.
Ⅲ. A subject on compensation.
In case that state and local governments should compensates upon a nature of when it only considers the substitutional responsibily so there is a view to be expounded that state and local governments is right of compensation.
However, a nature of it can be entirely considered to demand to the appropriate official whether it would be responsible responsible for self-reliability due to violate the duty contract between state and local governments and the related public offices. Also there is an oppinion to expound it that state and local governments would have a rights of compensation only a nature of responsibility is considered to the substitutional responsibility.
Ⅳ. Void valicity period of the state demand compensation rights.
Article 8, of the state compensation law is provided in civil law except for this law relating to the responsibility for compensation of state or local governments, but only as far as other provisions are concerned, and beside of the civil law should be followed it.
According to this, it is devided into 2years and 10 years of article number 776 of the civil law. There were an oppinions the same idea and 3 years and 3 tears separately: It is depends on a case in a judicial precedent.
I think it was proper to consider as 3 years and 5 years.
Ⅴ. Requirement for prior dicision by compensation committee
In past, to make compensation to state and local governments, first of all, applys to the local governments, and after passing through the compensation deliberation council and then applys to the civil court, however, it was amended on 29th Dec, 2000 and through the compensation deliberation council and applys it to the court without getting the dicision.
Ⅵ. A nature of period provisions.
As we all know, when the council has accepted an application of compensation, it must be decided within 4 weeks(State compensation law, 13-1) and also the case record posting is to be decided 4 weeks(Law, 13-11). These all provisions are pertaining to period of instructions, consequently, although a period of decision is over is still valid to relations of people, but only in case that other validity was provided or period-violated official internally were reprimanded is another question.
Ⅶ. Legislative theory.
As I said in front page, the phrases used in law-making in past is regretful. When it took the indispensible decision prepositionism is past, changing from the indespensible decision prepositionism to the optional decision preposition.
목차
Ⅰ. 序說
Ⅱ. 損害賠償責任의 主體
Ⅲ. 國家賠償法上의 求償權
Ⅳ. 消滅時效
Ⅴ. 期間規定의 性質
Ⅵ. 決定前置主義
Ⅶ. 立法論
〈Abstract〉
참고문헌 (0)
참고문헌 신청이 논문과 연관된 판례 (3)
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