The U.S FTCA’s the Discretionary Function Exception and Its Implication

On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.