The stipulation of law is not confined to the powers granted to the national authorities in the execution of public affairs, but the purpose of which is to protect the life, body health, property and other interests of the citizen as well. In addition, specific provisions are stipulated with respect to matters which are executed by the responsible authorities in the exercise of their public authorities. Where, pursuant to the said provision, the public servant of a responsible authority cannot exercise any discretionary power for inaction with respect to any obligations to identifiable persons, and the failure to discharge his/her duties by reason of deliberateness or negligence has resulted in harm to the liberty or rights of the identifiable persons, the victim thereunder may claim compensatory damages in accordance with Article 2, the latter part of Paragraph 2, of the State Compensation Act. Precedent T.S.T.No. 704 (Sup Ct., 1983) states that, "pursuant to Article 2, the second sentence of Paragraph 2, of the State Compensation Act, the so-called ‘negligence in the discharge of duties by a public servant’ refers to the situation where the public servant is obligated to discharge certain duties to the victim but fails to do so. In other words, the victim has the right of claim under the public law with respect to certain duties of the public servant. After the request for execution, if, as a result of the failure to discharge the duties, harm is caused to the liberty or rights of the victim, the victim can thus claim that the state should be responsible for compensatory damages based on the aforesaid provision. Where the people can enjoy the interest of reflection as a result of the discharge of duties by the public servant, but where the people cannot request the discharge thereof, in this instance, even if the public servant fails to discharge his/her duties, the people cannot exercise any right of request under public law to seek to safeguard their interests, and as such they cannot claim state compensation based on the above provision." Such Precedent shall be applicable in the situation where the prerequisites are satisfied, and if the identifiable persons have the right of claim under public law and have made a request for action by the public servant in accordance with legal procedures where the latter fails to discharge his/her duties. However, the portion of said Precedent which contravenes the aforesaid intent of the interpretation would be imposing limits on the rights of the public to request state compensation where the law does not so impose, and it would be contradictory to the constitutional purpose of protecting the rights of the public and therefore such portion should no longer be applicable.

       Article 24 of the Constitution prescribes that where a public servant is in violation of the liberty or rights of the people, the people can request state compensation based on the law. This elucidates in principle the obligations for state compensation. The legislative authority enacts appropriate laws with respect to state responsibilities based on this principle. In addition, on the premise of legal stipulations, the administrative authority may, because of an expansion in its scope of duties and in response to the hazards created to the environment or sanitation as a result of intense industrialization and overdevelopment as well as hazards triggered by the technical facilities, adopt measures to prevent or minimize dangers so as to enhance the protection of public safety. If the constituent elements for national responsibilities are found to be adequately present as prescribed in the legal stipulations, then a strict interpretation cannot be adopted when applying the applicable law so as not to hinder the exercise of rights to which the people are legally entitled.   Article 2, Paragraph 2, of the State Compensation Act provides that "where the exercise of public authorities in the performance of duties by a public servant results in illegal violation of the liberty or rights of the people by reason of deliberateness or negligence, the state shall be responsible for compensation. The same shall apply where harm is caused to the liberty or rights of the people by reason of failure of a public servant to discharge his/her duties." As long as the official conduct of a public servant satisfies the following: exercise of public authorities (either intentional or negligent), illegal conduct, sufficient causal link between the harm to the liberty or rights of the identifiable persons and the illegal conduct, and the harm is not caused by natural disasters or force majeure events, the victim may base his/her case on either active action or passive inaction and, in accordance with the former or the latter clause of the aforesaid article, request state compensation. The essence of that stipulation is evident and is not dependent on the victim*s having a right of claim under the public law with respect to the public servant*s failure to discharge duties and the subsequent actual failure thereof after the claim. However, because of the different laws and the different purposes of prescription, there are those which stipulate the limits on the powers exercisable by the responsible authority in the execution of public affairs, and those which grant discretion to the responsible authority for action or inaction. As regards the above legal provisions, even if a public servant of the said responsible government authority fails to discharge his/her duties, if it is difficult to determine whether the rights of the citizens have been directly affected as a result thereof, or if by nature it is a matter of whether it is an issue appropriate for administrative determination, there is no ground to institute a claim for state compensation if it is to no extent in violation of any laws. The various factors for consideration (for example, the imminence of harm to the interests of the citizens, the foreseeability of the occurrence of the harm by the public servant, whether the prevention of harm is reliant on the exercise of public authorities in order to achieve the purpose and harm can not be avoided by reason of personal efforts), are not matters which are beyond determination. If the purposes of the laws are to protect the life, health, property and other interests of the citizen, and there are clear provisions in regard to the exercise of public authorities by the relevant authorities, by virtue of this provision, the public servant of the responsible authority does not have the discretion for inaction with regard to the identifiable persons to whom he/she has a responsibility to act. Therefore, where harm is caused to the liberty or rights of an identifiable person as a result of an intentional or negligent failure to discharge official duties or a refusal to discharge duties where so obligated, then the victim can claim compensatory damages from the state. The determination of the purpose of protection under the aforesaid legal provision depends on each individual case. If the law clearly stipulates that the identified person shall enjoy certain rights or if it grants the identifiable person who satisfies the legal requirements the right of request of certain action vis-a-vis the administrative body or government authorities, undoubtedly the purpose of the regulation whereof lies in protecting the interests of the individual. However, although the laws are enacted for the public welfare or the benefits to the general public, and judging from the overall structure of the law, the applicable party, the intended regulatory effects and factors of social developments, the laws also intend to protect the identified persons, then the person who claims that his/her interests have been harmed as a result of the public servant*s failure to discharge his/her duties shall have a recourse in law. 

       Precedent T.S.T. No. 704 (Sup. Ct., 1983) states that, "pursuant to Article 2, the second sentence of Paragraph 2, of the State Compensation Act, the so-called ‘negligence in the discharge of duties by a public servant’ refers to the situation where the public servant is obligated to discharge certain duties to the victim but fails to do so. In other words, the victim has the right of claim under the public law with respect to certain duties of the public servant. After the request for execution, if, as a result of the failure to discharge the duties, harm is caused to the liberty or rights of the victim, the victim can claim the nation to be responsible for compensatory damages based on the aforesaid provision. Where the people can thus enjoy the interest of reflection [point is unclear] as a result of the discharge of duties by public servant, but where the people cannot make a request for the discharge thereof, in this instance, even if the public servant fails to discharge his/her duties, the people cannot exercise any right of request under public law to seek to safeguard their interests, and as such they cannot claim state compensation based on the above provision." Such Precedent shall be applicable in the situation where the prerequisites are satisfied, and if the identifiable persons have the right of claim under public law and have made a request for action by the public servant in accordance with legal procedures where the latter fails to discharge his/her duties. However, the portion of such Precedent which contravenes the aforesaid intent of the interpretation would be imposing limits on the rights of the public to request state compensation where the law does not so impose, and it would be contradictory to the constitutional purpose of protecting the rights of the public; and, therefore, such portion should no longer be applicable. 

       Where the authority is responsible for compensation by virtue of the above purpose, and the public servant was intentionally wrong or grossly negligent, the responsible authority can exercise the right of indemnification against such public servant pursuant to Article 2, Paragraph 3, of the State Compensation Act. Undoubtedly, where there is a person responsible for the compensatory damages, then the authority obligated for compensation is entitled to a right of compensation against the said person.  

*Translated by BAKER & McKENZIE.