CONTENTS
- 1. Right to Claim State Compensation | Definition
- - Subjects and Requirements of the Claim
- - Right to Claim State Compensation | Limitations
- 2. Right to Claim State Compensation | Standards for Calculating Compensation
- - Standards for Compensation in Case of Death
- - Standards for Compensation in Case of Bodily Injury
- - Deduction Items in Calculating State Compensation
- 3. Right to Claim State Compensation | Claim Procedures
- - What Is the Extinctive Prescription for the Right to Claim State Compensation?
- 4. Right to Claim State Compensation | Types of State Compensation
- 5. Right to Claim State Compensation | Points to Note
- - Methods for Self-Representation
- 6. Right to Claim State Compensation | Key Issues
1. Right to Claim State Compensation | Definition
The right to claim state compensation refers to the right to claim monetary compensation from the State for loss suffered by an individual due to the unlawful exercise of public authority by the State or a local government.
This is provided in Article 29, paragraph 1 of the Constitution and is an important right that ensures victims are protected equally before the law.
A citizen who has suffered loss due to an unlawful act committed by a public official in the course of official duties may claim just compensation from the State or a public body as prescribed by law.
In other words, if a public official acted unlawfully in the course of performing official duties and a citizen suffered property-related or emotional loss as a result, the victim may receive compensation commensurate with that loss under the State Compensation Act.
Subjects and Requirements of the Claim
▶Object of the claim (defendant)
-The State or a local government
-The lawsuit is filed against the State or a local government, not against an individual public official.
▶Requirements for compensation
-To claim State compensation, the following requirements must be met.
Requirement | Details |
Official duty act of a public official | It must be an act that occurred in the course of a public official performing official duties |
Intent or negligence | There must be intent or negligence |
Violation of statutes | The act must have violated statutes |
Occurrence of damage | Property or mental damage must have occurred |
Causation | There must be a causal relationship between the unlawful act and the damage |
Right to Claim State Compensation | Limitations
We will examine the cases in which the right to claim state compensation is limited.
▶Limitation regarding accidents during official duties for military personnel, police, and others
-Persons covered: soldiers, civilian military employees, police officers, and reserve forces members
-Type of accident: death in action, death in the line of duty, or injury sustained while performing official duties such as combat or training
-Grounds for limitation: where compensation under other statutes, such as disaster compensation, survivors’ pension, or disability pension, has already been received
However, an exception is recognized where survivors claim consolation money for emotional suffering
▶Limitation on state compensation for foreign nationals
-Where the victim is a foreign national, the State Compensation Act applies only where there is mutual guarantee between the states.
2. Right to Claim State Compensation | Standards for Calculating Compensation
The following examines the standards for calculating compensation under the right to claim state compensation.
State compensation is calculated according to specific standards depending on the type of harm, and it is generally assessed based on death, bodily injury, mental suffering, disability, and similar factors.
Standards for Compensation in Case of Death
▶Survivors’ compensation
-The victim’s monthly salary, monthly actual income, or average wage × the future period during which employment is possible
-Deduction of living expenses
∙No dependents: 35%
∙With dependents: 30%
▶Funeral expenses and consolation money
-Funeral expenses: 100 days’ worth of the average wage
-Consolation money: calculated in accordance with attached Table 4 of the Enforcement Decree of the State Compensation Act
▶Reference: Factors for calculating the period during which employment is possible
-Subjective factors such as the victim’s age, career, and health condition
-Objective social factors such as the average life expectancy of the population and economic conditions
Standards for Compensation in Case of Bodily Injury
▶Medical care benefits and compensation for business suspension
-Actual expenses for necessary medical care
-Compensation for business suspension based on monthly salary or average wage for the loss of income due to medical care
▶Disability compensation
-Where labor capacity is lost due to a disability: monthly salary or average wage × future employable period × rate of loss of labor capacity
▶Consolation money
-Where there is no disability: 20,000 won per day of the medical care period
-Where only mental damage is suffered: up to 10 million won
-Where there is a disability: in accordance with the standards in the attached table of the Enforcement Decree
▶Nursing expenses
-Where the victim, due to a disability, has difficulty living without the protection of another person, nursing expenses are paid based on the daily wage for day labor within the life expectancy.
Deduction Items in Calculating State Compensation
▶Where loss and gain arise at the same time
-Where the victim obtains a monetary gain at the same time as the loss, an amount equivalent to that gain is deducted from the amount of damages.
▶Deduction of living expenses from the survivors' compensation
-No dependents: 35%
-With dependents: 30%
▶Deduction of interim interest (Hoffmann method)
-Where survivors' compensation, disability compensation, future medical expenses, and the like are claimed at once
-Interest is deducted from the future amount using the simple discount method (Hoffmann method) based on the statutory interest rate
3. Right to Claim State Compensation | Claim Procedures
The procedure for claiming the right to State compensation is as follows.
1. Filing a compensation application with the Compensation Deliberation Council
-Filing body: the district deliberation council having jurisdiction over the victim’s address, location, or the place where the cause of compensation occurred
-Documents to submit: the State compensation application, materials proving the loss, a medical certificate, a power of attorney, and similar documents
-Reference: review is conducted by the deliberation councils in charge of State compensation in each ministry, such as the Ministry of the Interior and Safety, the National Police Agency, and the Ministry of National Defense
2. Filing a lawsuit claiming State compensation
-Separately from the Compensation Deliberation Council procedure, a lawsuit may be filed directly with the civil court
-The lawsuit proceeds according to the same procedure as an ordinary civil case
-Court with jurisdiction: the district court having jurisdiction over the location of the defendant (the State/local government) or the place where the loss occurred
3. Payment procedure after a compensation decision
-When a compensation decision is made, the applicant requests payment from the State or the local government, attaching a letter of consent
-If no request is made, the applicant is deemed not to have consented to the decision
What Is the Extinctive Prescription for the Right to Claim State Compensation?
We will examine the extinctive prescription of the right to claim state compensation.
-Five years from the date the tort occurred
-For a minor who has suffered sexual violation, the prescription is suspended until they reach adulthood
4. Right to Claim State Compensation | Types of State Compensation
Let us look at the types of cases in which a claim for state compensation may be brought.
▶Unlawful acts by investigative agencies
-Unlawful arrest and detention: arrest or detention that disregards the presumption of innocence
-Search and seizure without a warrant: intrusion into a residence and seizure of property without a warrant
-Fabricated investigation: coercion of false statements and the like
▶Unlawful dispositions by an administrative agency
-Unlawfulness of a permit revocation or suspension: where a business permit is revoked without justifiable grounds
-Disadvantageous disposition through abuse of authority: imposition of an administrative fine without basis and the like
▶Negligent management of facilities
-Vehicle damage caused by road damage
-Safety accidents within schools and public institutions
5. Right to Claim State Compensation | Points to Note
The following reviews the precautions regarding the right to claim state compensation.
-It is necessary to prove the unlawful official act, intent or negligence, the loss, and the causal relationship
▶Be sure to confirm the extinctive prescription period
▶Where the harmed party is at fault, the amount of compensation is reduced
Methods for Self-Representation
The following explains the basic order of response for proceeding with a state compensation claim lawsuit.
1. Organizing the Unlawful Official Conduct
Organize the specific date and time, place, information on the public official, and the like
2. Collecting and Organizing Evidence
Statements, medical records, recorded files, CCTV footage, and the like
3. Preparing and Submitting a State Compensation Application
Forms are available on the websites of administrative agencies (for example, the National Police Agency or a city hall)
4. After Confirming the Result of the Preliminary Compensation Procedure
File a civil lawsuit if not recognized
5. Preparing and Submitting the Civil Lawsuit
Confirm the competent court → submit the complaint → attend the trial
▶Tips for Self-Representation
-The complaint must meet the requirements of the Civil Procedure Act
(stating the object of the claim, the cause of the claim, information on the defendant, and supporting evidence)
-It can be submitted through the court's civil affairs office or the electronic litigation website
-When calculating the amount of damage, sum up medical expenses, consolation money, repair costs, and the like
6. Right to Claim State Compensation | Key Issues
The issues in the right to claim state compensation are reviewed below.
In the past, even where a person suffered harm through the fault of the state or a public official, the structure made it difficult for an individual to prove this or to hold anyone responsible.
At present, however, a structure under which the state bears legal responsibility for the unlawful acts of public officials in the course of their duties is clearly guaranteed through the Constitution and statutes, and the representative system that realizes this is the right to claim state compensation.
The right to claim state compensation goes beyond a mere means of loss compensation; it is a constitutional fundamental right through which citizens can legally voice their concerns about the abuse of state power.
In other words, it is a core means of judicial control that protects citizens' rights from the unlawful exercise of public power and compels the state to bear responsibility for it.
Where a person has actually suffered harm due to a public official's act in the course of duty, the injured party may claim compensation from the state in accordance with the procedure described above by proving the unlawfulness of the act, whether there was intent or negligence, the occurrence of harm, and the causal relationship.
Depending on the nature of the case and the clarity of the evidence, an individual may, of course, prepare and file a claim for compensation on his or her own.
In particular, where the harm is clear, the evidentiary materials are sufficient, and the issues are simple, a sole response through a civil petition procedure or civil litigation is also possible.
In practice, however, the assistance of a legal expert can make a significant difference for the following reasons.
-Where a state agency asserts a 'discretionary act' and contests its exemption from liability
-Where the calculation of the amount of damages is complex or high-value compensation items such as disability or nursing costs are involved
-Where the evidentiary materials are partly insufficient or the credibility of statements is at issue
A claim for state compensation is examined strictly according to clear legal requirements, so in actual litigation it is difficult to be recognized on assertions alone, and a strategic response according to the issues may be necessary.
Therefore, depending on the importance or complexity of the case, a systematic response through legal advice from an experienced law firm and a litigation representative can be a key factor in obtaining recognition of compensation.
At Daeryun LLC, an administrative law attorney who has handled many related cases organizes the unlawful act and the causal relationship and systematically reviews all of the elements of proof, including income data, medical records, and emotional harm.
If you are preparing a claim for state compensation or need a response, you may use the 🔗legal consultation booking to review the issues in your case and your response strategy.
Daeryun, ranked 9th among law firms in the Republic of Korea (based on 2025 National Tax Service value-added tax filings), provides tailored legal services.
