물의 공급이나 홍수피해 방지를 위한 것은 국가의 업무이다. 이런 국가의 의무를 수행하기 위해 댐이라는 인공공물을 건설하게 되면서 댐의 설치 또는 관리상의 하자로 인해 생명과 재산에 피해가 발생하고 있다. 하지만 이런 피해는 천재로 여기고 별로 문제삼지 않았었다. 그러나 댐의 방류나 통지의무의 해태에 의해 피해가 발생한 사건에서 댐의 설치 또는 관리상의 하자가 있다고 하여 국가배상법 제2조 또는 제5조에 기해 손해배상을 청구하는 것이다. 그래서 하천시설 중의 하나인 댐의 설치 또는 관리상의 하자로서, ① 댐의 설치 장소, 구조, 기능 등 물적상황, ② 홍수조절용량의 설정이나 홍수조절방식의 책정, ③ 조작규칙의 책정도 포함한 댐 조작․방류 조작, ④ 방류에 즈음해서 통지․경고로 구분해 보았는데 판례에서 ①과 ②에서는 하자가 모두 부정이 되었고 ③과 ④에서는 하자가 긍정된 경우와 부정된 경우가 있다. 그리고 ③과 ④의 문제를 국가배상법 제2조에 의해 판단해야 하는지 제5조에 의해 판단해야 하는지에 대해서도 알아보았다. 또한 관리상의 하자의 의의나 하자를 판단함에 있어 위험방지조치의 해태도 참작해야 하는지에 관해서는 판례를 통해 알아보았는데 영조물의 종류가 다양화하고, 구조도 복잡한 오늘, 그 관리 방법도 복잡화, 고도화하고 있어, 적절한 관리를 실시하는지에 대해서는 관계 각 기관의 협력이 필요한 경우가 있는 것은 분명하여, 하자 판단시에 위험방지조치의 해태가 고려되기도 한다. 덧붙여서 앞으로 홍수대책 및 수해 관리를 위해서는 새로운 접근 방식에 의한 수해 관리방안이 필요하고, 특히 위험증대시설인 댐을 관리하기 위해서는 훈련과 교육이 필요하다.

A government would have its own commitments to providing its people quality water supply systems and preventing potential natural disasters resulting from floods; actually, an urgent need to respond to those commitments led to the construction of artifactual dams all over the country. Contrary to such generic expectations, however, reckless dam construction projects and the resulting mismanagement have cost us lots of casualties and property damages. In spite of that, people did not take such losses seriously as they were, which they rather considered nothing more than natural disasters, not man-induced ones. As for now, pursuant to Article 2 & 5 of the National Compensation Act, one could file claims for damages against the Government in case he/she believes that they are attributable to a governmental mismanagement or any other governmental malfunctions in that either its sudden water discharge or neglect of duties to notify possible affected residents of the said discharge in advance has caused the foregoing casualties or damages. With regard to such dam-related mismanagement and malfunctions, this study took the following four aspects into account: (1) Physical conditions of a dam, such as location, structure, functions, etc.; (2) Determination of flood control capacity or flood control method; (3) Regulated dam discharge based on specific rules on dam discharge; and (4) Notice of dam discharge Precedents hold that any government mismanagement or malfunctions in accordance with the foregoing (1) and (2) were negated, while, in case of (3) and (4), mixed precedents of rulings were found. This study addresses whether those two cases are subject to Article 2 or 5 of the same act. Furthermore, it’s also explored by the used of judicial precedents whether an aspect related to any neglects of duties or obligations to take preventive measures can be referred to in judging the said mismanagement or malfunctions. Incidentally, since public facilities, such as dams, get more and more varied and complex, which, in turn, required their management to get more and more complicated and sophisticated, it’s obvious that there may be a case where it will take cooperation from applicable authorities to decide whether a proper management has been done, which is why a failure to take preventive measures against contingent risks is often considered in judging whether there has been any mismanagement or malfunctions attributable to the government. In addition to that, there is an urgent need to come up with a new system to put floods and related damages under control based on a whole new approach. Also needed are trainings and educations tailored to those in charge of operating and managing dams that are more likely to cause disasters than other social infrastructure and more susceptible to natural changes.

A government would have its own commitments to providing its people quality water supply systems and preventing potential natural disasters resulting from floods; actually, an urgent need to respond to those commitments led to the construction of artifactual dams all over the country. Contrary to such generic expectations, however, reckless dam construction projects and the resulting mismanagement have cost us lots of casualties and property damages. In spite of that, people did not take such losses seriously as they were, which they rather considered nothing more than natural disasters, not man-induced ones. As for now, pursuant to Article 2 & 5 of the National Compensation Act, one could file claims for damages against the Government in case he/she believes that they are attributable to a governmental mismanagement or any other governmental malfunctions in that either its sudden water discharge or neglect of duties to notify possible affected residents of the said discharge in advance has caused the foregoing casualties or damages. With regard to such dam-related mismanagement and malfunctions, this study took the following four aspects into account: (1) Physical conditions of a dam, such as location, structure, functions, etc.; (2) Determination of flood control capacity or flood control method; (3) Regulated dam discharge based on specific rules on dam discharge; and (4) Notice of dam discharge Precedents hold that any government mismanagement or malfunctions in accordance with the foregoing (1) and (2) were negated, while, in case of (3) and (4), mixed precedents of rulings were found. This study addresses whether those two cases are subject to Article 2 or 5 of the same act. Furthermore, it’s also explored by the used of judicial precedents whether an aspect related to any neglects of duties or obligations to take preventive measures can be referred to in judging the said mismanagement or malfunctions. Incidentally, since public facilities, such as dams, get more and more varied and complex, which, in turn, required their management to get more and more complicated and sophisticated, it’s obvious that there may be a case where it will take cooperation from applicable authorities to decide whether a proper management has been done, which is why a failure to take preventive measures against contingent risks is often considered in judging whether there has been any mismanagement or malfunctions attributable to the government. In addition to that, there is an urgent need to come up with a new system to put floods and related damages under control based on a whole new approach. Also needed are trainings and educations tailored to those in charge of operating and managing dams that are more likely to cause disasters than other social infrastructure and more susceptible to natural changes.