[형사보상][공2004.12.15.(216),2063]
In case where a person subject to a judgment dismissing a protective custody in an extraordinary appeal procedure receives an execution of protective custody according to the original judgment, whether a criminal compensation can be claimed for the execution of protective custody (affirmative)
It is reasonable to interpret that Article 1(2) of the Criminal Compensation Act can apply mutatis mutandis to cases where a person subject to a judgment dismissing protective custody in an extraordinary appeal procedure receives a protective custody execution according to the original judgment. This interpretation also accords with the constitutional spirit that declares the right to claim criminal compensation.
Article 1(2) of the Criminal Compensation Act and Article 28 of the Constitution
Claimant
Criminal compensation of KRW 61,800,000 shall be paid to an applicant.
1. According to the records, the claimant was sentenced to imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act on May 4, 1994 and two years and six months, and the above judgment was finalized on the same day (hereinafter referred to as "original judgment"), the claimant completed the execution of the punishment on June 16, 1997, and the execution of the protective custody was commenced on June 17, 1997, and was confined to the protective custody office on March 22, 2004, which is 6 years and 9 days after the date of execution of protective custody (2,472 days). This constitutes an extraordinary appeal for the reason that the Prosecutor General violated the Act on March 23, 2004 by the Supreme Court Decision on March 23, 2004, and the defendant was released from the charge of violating the Act on the Protection of Violences, etc. on the ground that it did not constitute an extraordinary appeal under Article 4 of the Criminal Procedure Act on March 23, 2004.
2. Article 1(2) of the Criminal Compensation Act provides that “A person who has received a verdict of 'not guilty' due to the recovery of his/her right to appeal, review, or extraordinary appeal procedure may file a claim for compensation for detention or execution of his/her punishment when he/she has been detained or sentenced to execution of his/her punishment according to the original judgment.” Even if different provisions of the Criminal Compensation Act are examined, a person subject to a judgment dismissing his/her protective custody in an extraordinary appeal procedure may claim compensation for the execution of protective custody when he/she has been sentenced to execution of the protective custody according to the original judgment. However, Article 28 of the Constitution provides that "a person subject to a judgment dismissing his/her protective custody may claim compensation for the execution of the protective custody when he/she has received a non-prosecution disposition or not guilty as prescribed by Act may claim compensation from the State in accordance with the provisions of the Criminal Compensation Act." However, it appears that recognizing the right to claim compensation for a person subject to protective custody can be interpreted by applying the above provision to protective custody where he/she is subject to lawful execution of the protective custody.
3. Therefore, this case does not constitute a case where the compensation stipulated under each subparagraph of Article 3 of the Criminal Compensation Act may not be provided. Thus, Article 1(2) of the Criminal Compensation Act shall apply mutatis mutandis to the State by analogy of Article 1(2) of the same Act. Furthermore, in light of the health care unit, the period during which the protective custody was executed, the loss of property that could have been gained, or mental suffering and physical harm, the claimant's age, occupation and living level, and all the circumstances stipulated under Article 4(2) of the Criminal Compensation Act, including physical harm and physical harm, the claimant's compensation for the execution of protective custody shall be 5,00 won or more per day and 100, or 400 won per day under Article 2 of the Enforcement Decree of the same Act (the minimum daily wage per day under the Minimum Wage Act of the year in which the cause for claim for compensation occurred x the amount to be paid to the applicant 20,000 won per day x 200 won or less per day (the State shall be recognized as 20000 won or less per day).
4. If so, the State is obligated to pay 61,80,000 won to the claimant with the criminal compensation of this case, so it is so decided as per Disposition.
Justices Byun Jae-chul (Presiding Justice)