[2] Whether the procedure of dissatisfaction or correction against the trial is established, and whether the state liability for damages is recognized due to an unfair trial

[3] The case holding that the State's liability for damages can be recognized in a case where the Constitutional Court made a decision to dismiss a petition for adjudication on constitutional complaint within the deadline for filing a petition for adjudication on constitutional complaint by mistake

[4] Whether consolation money is recognized in a case where a request for adjudication on constitutional complaint was rejected in a judgment on the merits even if the request for adjudication on constitutional complaint was not unfairly dismissed (affirmative)

[5] Whether the determination of the amount of consolation money for mental suffering suffered by a tort is a discretionary matter under the authority of the fact-finding court (affirmative)

[2] Where separate procedures for objection or correction are provided for in a trial, a person who suffered disadvantage or loss as a result of a trial is expected to recover his/her right or interest in accordance with such procedures. Thus, barring special circumstances such as where a person could not seek correction due to appeal could not seek correction due to a cause attributable to a judge or other public official, or where there are unavoidable circumstances that could not seek such correction, it is reasonable to deem that a person who could not recover his/her right or interest can not, in principle, receive a remedy for infringement by the State’s compensation, unless he/she seeks such correction. However, in cases where there is no procedure for objection or correction as to a trial, the person who suffered disadvantage or loss due to unfair trial cannot recover his/her right or interest by means other than the State’s compensation, and in such cases, the State’s compensation liability cannot be acknowledged unless the requirements for liability for damages are met.

[3] The case holding that the State's liability for damages may be recognized in a case where the Constitutional Court decided to dismiss a petition for adjudication on constitutional complaint within the deadline for filing a petition for adjudication on constitutional complaint by mistake

[4] The claimant for adjudication on constitutional complaint is bound to expect that the Constitutional Court will make a decision on the merits by accurately calculating the date. Accordingly, inasmuch as the Constitutional Court has lost an opportunity for the claimant to be judged on the merits by making a wrong decision of dismissal as a result of an unlawful performance of duties by the Justice of the Constitutional Court, even if the request for adjudication on the merits was dismissed even if there were circumstances that the request for adjudication on the constitutional complaint was dismissed, the claimant’s reasonable expectation of adjudication on constitutional complaint was infringed due to erroneous determination, and such expectation is worth protecting as a personal interest, and thus, it is obligated to pay consolation money as to mental suffering from such infringement.

[5] The amount of consolation money for mental suffering suffered by tort can be determined by the fact-finding court at its discretion in consideration of all the circumstances.

A. As to the liability for damages

(1) Even if a judge’s error does not comply with the provisions of the law, it does not result in the State’s liability for damages by an unlawful act as referred to in Article 2(1) of the State Compensation Act, and it is reasonable to interpret that, in order to recognize the State’s liability for damages, the pertinent judge should have special circumstances to recognize that the judge clearly exercised the authority granted to him, such as where the judge rendered a judgment with unlawful or unjust purposes or where the law requires compliance with the judge’s performance of duties, etc. (see, e.g., Supreme Court Decisions 200Da29905, Mar. 9, 200; 200Da16114, Apr. 24, 2001; 201Da47290, Oct. 12, 2001).

However, in cases where separate procedures for objection or correction are provided for in a trial, a person who suffers disadvantages or losses as a result of a trial is expected to recover his/her rights or interests in accordance with such procedures. Thus, barring special circumstances such as where the failure to seek correction by objection was caused by a judge or other public official’s causes attributable to him/her, or where it was impossible to seek such correction, it would be reasonable to deem that a person who fails to recover his/her rights or interests as a result of failure to seek such correction cannot, in principle, receive a remedy for infringement by the State’s compensation. However, in cases where there is no procedure for objection or correction as to a trial, there is no way to recover his/her rights or interests by means other than the State’s compensation, and in such a case, the State’s compensation liability cannot be acknowledged as long as the requirements for the aforementioned liability are met.

In addition, from the point of view of the state liability for damages against the trial, the judicial affairs of the Constitutional Court shall be deemed to be identical or similar to the judicial affairs of the judge, so the above precedents and opinions of the Court shall also be applied to the judicial affairs of the Constitutional Court.

(2) According to the facts established by the court below, the plaintiff filed a request for adjudication on constitutional complaint of this case on November 4, 1994, which was within the legitimate deadline for filing the request, and the Constitutional Court Justice rejected the request on the ground that the deadline for requesting adjudication on constitutional complaint of this case had expired. ① The above mistake does not belong to the area of interpretation of the Constitution entirely entrusted to the judge's discretion or recognition and evaluation of laws and regulations or facts, but it does not belong to the area of recognition and evaluation of the deadline for requesting adjudication on constitutional complaint. ② The fact that the date for filing the plaintiff's constitutional complaint of this case was recognized as the date for filing the Constitutional Court's decision, ③ there was no objection against the Constitutional Court's decision (this is so decided, but the Constitutional Court's decision of 201Hun-Ga3 decided September 27, 2001 that the above error did not affect the Constitutional Court's decision within 10 days prior to the above determination on constitutional complaint of this case, and there was no room for rejection of the request for adjudication of this case by the Constitutional Court's decision of 10.

In the same purport, the court below is justified in recognizing the defendant's liability for State compensation as to the decision of dismissal of the Constitutional Court, and there is no error of law in the misapprehension of legal principles

B. As to mental damage

The plaintiff who filed an adjudication on constitutional complaint is bound to expect the Constitutional Court to make a judgment on the merits by accurately calculating the date. Accordingly, inasmuch as the plaintiff lost an opportunity to receive a judgment on the merits by making an erroneous decision of dismissal as a result of an unlawful performance of duties by the Justice of the Constitutional Court, even if the case was judged on the merits, the plaintiff's reasonable expectation of the claimant for adjudication on constitutional complaint was infringed upon due to erroneous determination, and such expectation is worth protecting as a personal interest. Thus, the plaintiff has a duty to pay consolation money for mental suffering from such infringement.

Although the judgment of the court below that the decision of dismissal of this case infringed the plaintiff's right to trial and the right to pursue happiness, it is somewhat inappropriate to determine that the court below ordered the plaintiff to pay consolation money as the plaintiff suffered mental pain in conclusion, and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

C. Ex officio determination on damages for delay

On April 24, 2003, the Constitutional Court rendered a decision of unconstitutionality as to the "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the former Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 5507, Jan. 13, 1998; hereinafter referred to as the "former Promotion Act") with respect to the "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the former Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868, May 10, 2003; hereinafter referred to as the "former Promotion Act"), and thereafter the amended Act and the main sentence of Article 3 (1) of the former Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981, May 29, 2003). Thus, the judgment of the court below erred by applying the interest rate of 25% interest rate for delay damages.

2. Plaintiff’s ground of appeal

A. As to the attorney fee

The court below rejected the claim for damages of the amount equivalent to the plaintiff's attorney's fees on the ground that the expenses to be paid to the plaintiff for the petition for adjudication on constitutional complaint of this case cannot be deemed to have been incurred by the error in the decision of the Constitutional Court concerning the plaintiff's petition for adjudication on constitutional complaint of this case, and the above attorney's fees cannot be recognized as causation with the tort of this case. In light of the records, the court below's findings of fact and decision are just and acceptable, and there

Even if the plaintiff's claim for adjudication on constitutional complaint was not dismissed, in this regard, the attorney's fee paid by the plaintiff is not a causal relationship with the tort of this case, and its propriety does not affect the conclusion of the court below as a assumptive and additional judgment. Thus, the ground of appeal as to this point cannot be accepted.

B. Regarding consolation money

With respect to the amount of consolation money for mental suffering caused by tort, a fact-finding court can determine it at its own discretion by taking into account all the circumstances (see Supreme Court Decision 98Da41377 delivered on April 23, 199, etc.). The court below's order the payment of consolation money for the amount as stated in its holding is just and acceptable, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

3. Therefore, the part of the judgment below against the defendant as to damages for delay which exceeds the part ordering performance under the following among the part against the defendant is reversed, and this part is sufficient to be judged directly by this court. The defendant's appeal is dismissed as to 2,00,000 won as to the plaintiff from June 29, 1995, which is an illegal act, until May 1, 1997, as the date of the judgment of the court of first instance, as it is deemed reasonable to dispute about the existence or scope of the defendant's obligation to pay damages for delay, 5% per annum as prescribed in the Civil Act, from May 2, 1997 to January 12, 198, 25% per annum as prescribed in the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 5507 of Jan. 13, 1998) and the remaining part of the judgment of the court below as to the plaintiff's damages for delay from June 31, 1998 to 203.

Justices Lee Ji-dam (Presiding Justice)