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(영문) 서울중앙지방법원 2018.11.14 2013가합70090

손해배상

Text

1. The defendant

A. Plaintiff A: 90,941,600 won;

B. Plaintiff B KRW 30,000,000;

C. Plaintiffs C and D each KRW 10,000,000;

Reasons

Basic Facts

Plaintiff

The investigation and trial against A was executed on May 19, 197 on the charge of the violation of the Presidential Emergency Decree for the Protection of National Security and Public Order (hereinafter “Emergency Decree No. 9”) while attending the department of social affairs of the Korea National University, and was held in Seoul Detention Center on June 3, 197. On October 28, 197, the Seoul Criminal District Court sentenced on the charge of violation of Emergency Decree No. 9 and sentenced to imprisonment for three years and suspension of qualifications for three years.

(Seoul Criminal Court 7Gohap517). The plaintiff and the prosecutor appealed against this. On February 23, 1978, the appellate court reversed the judgment of the court below and sentenced the plaintiff A to the punishment of imprisonment with prison labor for 1 year and 6 months and suspension of qualifications for 1 year and 6 months.

(Seoul High Court Decision 77No1931, hereinafter “instant judgment subject to a retrial”). Plaintiff A appealed to the Supreme Court on May 9, 1978, but the final appeal was dismissed, and the instant judgment subject to a retrial became final and conclusive as it is.

Plaintiff

A was released from prison on November 30, 1978 after the prison term of approximately one year and six months.

On March 21, 2013, the Constitutional Court rendered a decision of unconstitutionality as to Emergency Measure No. 9 (2010HunBa132) on March 21, 2013, and the Supreme Court also declared that Emergency Measure No. 9 was unconstitutional and invalid (201 initially 689) on April 18, 2013.

On January 20, 2012, Plaintiff A filed for a retrial on the instant judgment subject to a retrial with Seoul High Court 2012Nono.10.

Accordingly, the above court rendered a ruling of commencing a new trial on May 23, 2013, and the Emergency Decree No. 9 on June 26, 2013 violated the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the trigger requirements. Thus, the Emergency Decree No. 9 was violated before it was revoked or invalidated, and thus, is null and void as it is unconstitutional even in light of the current Constitution.

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