2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

14.N

15. 0

16. P;

Q. Q.

18. R

19. S;

20. Telecommunication

21. U;

22. V

W 23, W

24. X

25. Y

26.2.

27, AA

28. AB

29. AC

30. AD;

31. AE;

32. AF;

33. AG;

34, AH

35, AI

36. AI;

37. AK;

38. AL;

39. AM;

40,N

41. AO

42. AP;

43. A Q.

44.AR

45, AS

46. AT

47. AU

48, AV

49. AW

50. AX;

51. AY.

52.AZ.

53.BA

54.B

5, BC

56. BD.

57.BE

58.BF

59.BG

60. BH.

61, BI

62. BJ

63.BK

64. BL

65, BM

66.BN

67.BO

68.BP

69, B Q.

70.BR

71.BS

72.BT

73.BU

74. BV

75, BW

76. BX

77.BY.

78.BZ;

79. CA;

80. CB

81.CC;

82. The CD;

83. CE

84. CF

85. CG

86, CH

87. CI

8. CJ

89. CK

90, CL

91. CM

92. CN

93.CO.

94. CP

95. C Q

96. CR

97, CS

98. CT

9. CU

2. All of the plaintiffs' claims except the plaintiffs A, B, and Q are dismissed. 3. Litigation costs are assessed against the plaintiffs.

A. On June 29, 1978, the State's safety issued pursuant to Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as "new Constitution") and the Presidential Emergency Decree for the Protection of Public Order (hereinafter referred to as "Emergency Decree No. 9") were arrested on July 9, 1978 and detained on the execution of a warrant of detention on July 19, 1978. Plaintiff BB was arrested on the same suspected facts, and detained on July 19, 1978, and detained on July 19, 1978. Plaintiff B was arrested on July 19, 197, and detained on July 19, 197.

2) The net CV, Plaintiffs I, R, AI, A, B, and A were detained as above and charged with violation of the Emergency Decree No. 91 as the Gwangju District Court 76 high-class 151, Plaintiff BU, CH, and Q as the court 78 high-class 238, respectively, [76 high-class 151] Defendant CV was charged for the second year at the University of CW University, Dong Dong Lin University in the fourth year at the University of LU, Dong Lin University in the fourth year at the University of LU, Dong Dong University in the second year at the University of LU, Dong University in the second year at the University of LU, Dong University in the fourth year at the University of LU, Dong University in the fourth year, Dong University in the fourth year at the University of LU, Dong University in the fourth year at the University of LU, Dong University in the third year, Dong University in the third year at LUU, Dong University in the third year as the secretary of LUUP, and Dong Pu P.

1. Defendant CV, in collusion with Nonindicted CY, CZ, and DA on May 24, 1978 and around 22:00, by using sheshesheshesheshesheshel and red twelet on the front stairs of the main pipe of the DC University located in Gwangju Dong-gu DB, thereby distorting the form of hershelic body system by using shelshel and red twelet in a size of about 40 cent meters;

2. Defendant CV, I, B, A, etc. in collusion with DD on June 28, 1978 by identifying about 200 students of the same school in the Pte field front of the Central Library of the WT University located in Gwangju Seo-gu, and holding a meeting in order to release DF professors due to Defendant B’s presence; 1. North Korea-do for the Detained professor on February 2, 1999 for the purpose of Defendant BB’s release of DF professors; and 4. Supporting the progress of the meeting in order of the following:

3. Defendant CV, AI, etc. in collusion with DG, DH, CY on June 28, 1978. Defendant CV, etc.: (a) printed 3,000 copies of the DK’s political freedom reservation; (b) printed 3,000 copies of the DK’s free will to distort the facts, such as Defendant CV, I, BB, AA, R, A, DL, DL, and DM’s free will to release professors from DI’ DI’ management DG management DG management; and (c) printed 3,000 copies of the DK’s daily life and educational indicators, such as that it should be humanized and democratization; and (d) printed 3,000 copies of the DK’s free will reservation; (b) released students from 20:0 on June 29, 1978 to 30:50 of the CK’s free will and distored the above DI’s free will, and distord the above 30.

[78Gohap238] Defendant BU is a person who was enrolled in the third year at CW University Literature University; CH was in the third year at the university at that university at that university; and Q was in the first year at that university at that university at that university.

1. Defendant BU, Dong CH, in collusion with CV, CY, DM, DM, DO, DL, DG, DH, DH, and DP on June 28, 1978 to 22:30, Defendant BU and Dong CH came to distribute CWK’s agricultural performance and demonstration at the CW University at 12:00 on the following day by means of the release of CWW professors in the DWR room located in the Dong-gu Seoul metropolitan city from June 28, 1978 to 17:50, and distributed the above DN to CW University at the CW University at 12:0 on June 29, 1978, Defendant BU received the above DK produced from CV at the main office located in the CW University at the CW University at the DW University at 100 on June 29, 1978, and distributed the above DN and 10 on the D and 10 on the D and 10 on the D and 7 universities.

2. Around 11:30 on June 29, 1978, at the entrance of the second floor of the Central Library of the CW University, 50 copies of the above DK and 50 copies of the DN and distributed them to library students;

3. The Defendants conspired with CV, CY, DM, DM, DO, DL, DG, DH, DH, and DP without permission from the authorities, to 20:30 on June 29, 1978, the Defendants conducted an agricultural demonstration, such as: (a) by linking approximately 50 students of the above university in CW University Central Library and Correction of CW University with approximately 50 students of the above university; (b) seeing them alternately from the above university’s central library and Correction to 20:30 on June 29, 1978; and (c) by creating relief, i.e., releasing professors of the Declaration of Democratic Education; and (c)

2) On August 23, 1978, the Gwangju District Court found the Defendant guilty of all the charges on the case No. 78 high-scale 151 on August 23, 1978, sentenced the Defendant to imprisonment of five years and suspension of qualifications, five years, five years, five years, two years of suspension of qualifications, two years of imprisonment, three years of imprisonment and suspension of qualifications, three years of suspension of qualifications, three years of imprisonment to Plaintiff AB, three years of suspension of qualifications, three years of suspension of qualifications, and three years of suspension of qualifications, three years of imprisonment to Plaintiff B (hereinafter referred to as the “the instant judgment subject to retrial”). The above court rendered a judgment that acquitted Plaintiff BU, CH, and Q for reasons that the Emergency Measure No. 9 was abolished by the Presidential Decree No. 677 on January 8, 1980 (hereinafter referred to as the “instant judgment of acquittal”).

3) As to the subject decision of the instant review (Supreme Court Decision 78Dahap151) of this case, the prosecutor appealed respectively on the grounds of mistake of facts and unfair sentencing (No. 78Do371 of the Gwangju High Court). On December 29, 1978, the Gwangju High Court dismissed all the appeals filed by the above plaintiffs and the prosecutor, and on March 13, 1979, the appeal by the above plaintiffs (Supreme Court Decision 79Do123 of the Supreme Court Decision 79Do123) was dismissed, and the subject decision of the instant review became final and conclusive as is.

4) On August 23, 1978, Plaintiffs A, I, R, and L were sentenced to a suspended sentence of the instant judgment subject to a retrial.

The release of Plaintiff A was released on August 15, 1979, and the network CV and Plaintiff BB were released on July 17, 1979. Plaintiffs BU, CH, and Q were released on December 7, 1979 by the decision to suspend detention (hereinafter referred to as “Plaintiff A, etc.”).

B. The final and conclusive judgment of innocence against the Plaintiff, etc. and CV, and criminal compensation

1) CV died on July 200, and Plaintiff BN et al., except Plaintiff BU, CH, and Q, filed a petition for a retrial on the instant judgment subject to a retrial with the Gwangju District Court 201 Inventory32. The said court decided on November 8, 2012 that the Emergency Measure No. 9 was unconstitutional and void from the beginning, and thus, the instant judgment became subject to a retrial.

2) On February 5, 2013, the above court rendered a judgment of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act against Plaintiff BU, CH, and Q, and CV on the ground that the Emergency Measure No. 9 was unconstitutional and invalid from the beginning to the beginning, and thus, the Defendant’s case constitutes a crime. The above judgment became final and conclusive around that time.

3) On January 23, 2014, Plaintiff BN filed a claim for criminal compensation with the Gwangju District Court 2013cc. 1370 on the ground of the aforementioned judgment of innocence. On January 23, 2014, the said court rendered a decision to pay KRW 72,90,000 to Plaintiff B and B, and KRW 78,537,60 to Plaintiff A, and KRW 8,164,80 to Plaintiff I, R, and AI, and KRW 7,192,80 to Plaintiff A, respectively.

4) Plaintiff BU, CH, and Q filed a claim for criminal compensation based on the judgment of acquittal in the instant case by the Gwangju District Court 2013co1547. On February 18, 2014, the said court rendered a decision to provide the said Plaintiffs with KRW 12,636,000, respectively, as criminal compensation.

5) Inheritance and family relationship of the Plaintiff, etc. and the network CV are as shown in the attached Form.

[Ground of recognition] Facts without dispute, Gap 1 through 15, and 31; the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. Emergency Decree 9 is a declaration made to suppress people’s resistance against the physical system, and domestic and foreign political situation at the time of the issuance of an emergency measure does not meet the requirements for exercising the emergency measure, and is unconstitutional and invalid in violation of the warrant requirement and the excessive prohibition principle, and the proportionality principle. The act of the President’s emergency measure No. 9 itself constitutes an unlawful act as a duty act attributable to a violation of the legislation of Article 2 of the State Compensation Act.

B. In applying subparagraph 9 of the unconstitutional and invalid emergency measures, investigators affiliated with the defendant were arrested illegally and arrested the plaintiff Gap et al. and CV without a warrant to force force seizure accompanied by advisers, such as assault, intimidation, and cruel conduct. The above plaintiffs et al. were not notified of criminal facts at the time of arrest, defense counsel’s right to appoint counsel, and family members were not notified of the right to remain informed of arrest and detention or of the right to appoint counsel. The above plaintiffs et al. were investigated without legal assistance due to prohibition of interview between family and defense counsel before prosecution. The above plaintiffs et al. made a confession without discretion and were convicted on the basis of their false confession. Although the judge of the defendant et al. became aware that the emergency measures9 were unconstitutional and void as a matter of course on the ground as seen above, the judge of the defendant et al. requested the above plaintiffs et al. to conduct investigation and trial on the defendant et al., and convicted the defendant et al. of imprisonment with prison labor and suspension of qualification for the above plaintiffs. In addition, the plaintiffs et al. were found guilty.

D. Therefore, the defendant should compensate for damages, such as mental damage and loss of lost profit, which the above plaintiffs and their families suffered due to the above tort.

3. Determination on this safety defense

A. The defendant's main defense

The defendant asserts to the effect that the above plaintiffs AA, BN, and Q received compensation under the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement (hereinafter referred to as the "Rediversization Compensation Act"), and that a judicial compromise has been established on all damage incurred in relation to democratization movements by consenting to the decision to pay compensation, etc. under Article 18 (2) of the same Act, and that the above plaintiffs' lawsuit is unlawful.

B. Determination

In cases where the legislative purpose of Article 18(2) of the Democratization Compensation Act is to obtain the consent to the determination of compensation, medical allowances, and living allowances (hereinafter referred to as “compensation, etc.”) in addition to the legislative purport of the Act, Articles 2 subparag. 1 and 2(d), 10(1), 14(2), and 18(2) of the same Act, Article 20 subparag. 3 of the Enforcement Decree of the Act on the Restoration of Honor to and Compensation to Persons Related to Democratization Movement (attached Form 10), the consent prepared and submitted by the applicant, and the contents of the written request, the legislative purpose of Article 18(2) of the Act on the Compensation of Democratization Movement shall be recognized as having the same effect as that of judicial compromise, in particular, as well as the fact that the applicant has obtained the consent to the determination of compensation, etc. for the damage inflicted upon the Plaintiff’s 20th Compensation Deliberative Committee (hereinafter referred to as “Compensation Deliberative Committee”) prior to litigation by granting res judicata effect. In full view of the fact that the applicant received the determination of compensation, etc.

Therefore, it is reasonable to deem that Plaintiff A, Q, and B had the same effect as a judicial compromise on all the damages incurred in relation to the violation of Emergency Measure No. 9, and thus, Plaintiff A, Q, and B’s lawsuit is unlawful as there is no benefit in protecting the rights.

4. Judgment on the plaintiffs except the plaintiffs A, Q and B (hereinafter referred to as "the plaintiffs")' claims

A. Whether the exercise of the presidential emergency power constitutes a tort

First, it is considered that the exercise of the emergency measure by the President constitutes a tort by intention or negligence of a public official under Article 2 (1) of the State Compensation Act.

Emergency Decree No. 9 does not only lack the requirements per se stipulated in Article 53 of the U.S. Constitution that served as the basis for the issuance thereof, but also infringes on the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom stipulated in the current Constitution and the current Constitution (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 2013).

However, even if Emergency Measure No. 9 was declared unconstitutional and invalid ex post by a court, the exercise of the presidential emergency measures based on the new constitution is a highly political act with high level of political nature, and the President, in principle, takes political responsibility in relation to the exercise of the national emergency measures, and does not take legal obligations in response to the individual rights of the people. Thus, it cannot be deemed that the exercise of such power by the President constitutes a civil tort in relation to an individual citizen (see, e.g., Supreme Court Decisions 2012Da48824, Mar. 26, 2015; 2004Da33469, May 29, 2008).

Therefore, it does not constitute a tort by a public official's intentional or negligent act as referred to in Article 2 (1) of the State Compensation Act as an act of issuing Emergency Decree No. 9 on its own.

Under the different premise from the above, the plaintiffs' assertion cannot be accepted.

B. Whether the investigation and trial constitute a tort

1) Relevant legal principles

In a case where a penal law has retroactively lost its effect due to a decision of unconstitutionality by the Constitutional Court, or the court has declared unconstitutional or null and void, even if an investigation was initiated based on the relevant law before the said law was declared unconstitutional and a public prosecution was declared guilty, such circumstance alone cannot be deemed as constituting a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act.

In addition to the lack of the requirements stipulated in Article 53 of the New Constitution, which is the basis of the issuance of the Emergency Decree, as well as the lack of the essential elements of democracy, and the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom as stipulated in the current Constitution. However, as long as the Emergency Decree No. 9, which was in force at the time, does not constitute a tort by a public official’s intentional act or negligence, since Article 53(4) of the New Constitution provides that “The act of judicial duties of a judge who has been convicted by arresting and detained a suspect without a warrant under subparagraph 9 of the Emergency Decree and who has instituted a public prosecution, or by applying subparagraph 9 of the Emergency Decree, shall not be subject to a judicial review”, it is difficult to view that the act of judicial duties of a judge who has been convicted of having committed a crime by a public official, and thus, constitutes a tort by a public official’s intentional act or negligence.

However, if the judgment of innocence becomes final and conclusive on the conviction of a violation of Emergency Measure No. 9 in the retrial procedure, the defendant or his/her heir can claim criminal compensation under the Criminal Compensation and Restoration of Honor Act under certain conditions and receive due compensation for the damage.

On the other hand, if a public prosecution was filed based on the evidence collected by a state agency in the course of investigation and a final judgment of conviction was made, but the case of the defendant under the latter part of Article 325 of the Criminal Procedure Act in the retrial procedure falls under "when there is no proof of criminal facts" and thus the judgment of innocence was finalized, the State's liability

However, in a case where the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act, which is the Act on the Punishment of the Defendant, applied to the trial procedure for the conviction of a violation of Emergency Decree No. 9, becomes final and conclusive on the ground that the Emergency Decree No. 9 applied to the Defendant, is unconstitutional or invalid, it cannot be deemed that the State's liability for damages is recognized as a result of the State's illegal act committed by the State agency, which was in the course of investigation, barring any other special circumstances. Thus, solely on the grounds that the judgment of innocence became final and conclusive on the same content, it cannot be deemed that the reinstatement by the conviction does not immediately constitute a State's illegal act, and it cannot be deemed that the State's liability for damages was established.In this case, it is difficult to determine whether to recognize the State's liability for damages against the uniforms, etc.

Therefore, in full view of the contents of the facts constituting an offense charged, the existence of evidence to acknowledge guilt, the grounds for the decision to commence a retrial, the circumstances leading the person involved in the case to be acquitted, and the reasons for the decision to commence a retrial under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9, if there was a high probability proof as to the existence of the grounds for innocence under the latter part of Article 325 of the Criminal Procedure Act without the grounds for innocence under the former part of Article 325 of the Criminal Procedure Act, a State agency may recognize causation between the illegal act committed in the course of investigation and the conviction, and accordingly, the State may be held liable for damages (see Supreme Court Decision 20

2) Determination

In light of the above legal principles, the act of judicial duties of a judge who was convicted of a violation of the duties of the investigative agency which brought an action against the plaintiff Gap et al. and the network CV by arresting and detentioning the plaintiff et al. without a warrant under subparagraph 9 of the Emergency Decree, which was in force at the time, or by applying subparagraph 9 of the Emergency Decree, shall not be deemed as an act committed pursuant to subparagraph 9 of the Emergency Decree, which was not declared

Furthermore, not guilty under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9

If there was no reason, it is difficult to view that such proof was made in light of the following circumstances acknowledged by the respective descriptions of evidence No. 20 to 28, 32, and 33 of the Criminal Procedure Act and the purport of the entire pleadings. Accordingly, the Plaintiffs’ assertion on this part cannot be accepted.

① The reason for the decision to commence a retrial on the judgment subject to a retrial is merely that Emergency Measure No. 9 is unconstitutional and invalid, but it is not proven that public officials involved in the investigation conducted harsh acts such as adviser, violence, etc., or committed a crime relating to their duties during the investigation process against the Plaintiff A, etc., but the judgment of innocence was rendered in accordance with the former part of Article 325 of the Criminal Procedure Act on the ground that Emergency Measure No. 9 was unconstitutional and invalid in the retrial procedure

② The instant judgment on the review of the case was accepted as guilty of all the facts charged, and each of the remaining DNA 96 and DK 164 were admitted as evidence of conviction (Evidence A 14).

③ Each statement on Gap evidence 20 to 28 alone is insufficient to recognize that the plaintiff Gap et al. made a false confession at an investigative agency due to cruel acts, such as adviser, etc., or that the defendant gave a false testimony at the court of first instance due to the coercion by the investigators affiliated with the defendant. In addition, there is no reason to deny admissibility of evidence due to the manipulation of the seized declaration itself or the illegality of the seizure procedure.

3) Meanwhile, the Plaintiffs asserts to the effect that they seek damages on the grounds of harsh acts such as violence and adviser during the investigation process, and inspection and surveillance after release.

A) In the process of arresting and investigating Plaintiff A and CV, even if the act of assault or cruel act and inspection and surveillance after release were committed, as alleged above, this constitutes a tort by official’s intentional or negligent act under Article 2(1) of the State Compensation Act. However, the Plaintiffs’ damage claim on this ground is a right against the State for monetary payment, and if it is not exercised for five years from the date of tort under Article 96 of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050, Oct. 4, 2006), the prescription expires. The fact that Plaintiff A and CV were released on or around August 1978 through December 12, 1979 is clear that the Plaintiffs’ lawsuit in this case was filed on September 17, 2013, which was five years after the date of release, barring any special circumstances. Thus, the statute of limitations expired for the Plaintiffs’ damage claim for the tort.

B) However, the exercise of the right of defense based on the extinctive prescription is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. As such, where there are special circumstances, such as: (a) the obligor has made it impossible or significantly difficult for the obligee to exercise his right or the interruption of prescription before the completion of the prescription; (b) had the obligee act to believe that such measures are unnecessary; (c) there was an objective obstacle to the obligee; or (d) had the obligee trusted the obligee; (b) there was a great need to protect the obligee; and (c) other creditors under the same conditions receive the repayment of the obligation; and (d) the obligor has remarkably unfair or unfairly refused the performance of obligation due to such special circumstances as the obligor’s assertion for the completion of the extinctive prescription is not permissible as abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2012Da37565,

However, solely on the grounds that the state is obligated to protect the people, the State’s assertion of the completion of extinctive prescription itself does not constitute an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2004Da33469, May 29, 2008). In order for the State’s assertion of the completion of extinctive prescription to be contrary to the principle of good faith and constitute an abuse of rights, special circumstances as seen earlier should be recognized. In addition, the application of the general principle as above to exclude the operation of the specific system under the law is at risk of undermining legal stability, which is a single major principle, in the interpretation of the law, and its application must be careful (see, e.g., Supreme Court Decision 2004Da71881, May 13,

However, in light of the following circumstances that can be recognized by the evidence mentioned above, it is insufficient to recognize that the defendant made it impossible or considerably difficult to exercise the plaintiffs' right to claim damages, or made such a speech or behavior to believe that such measures are unnecessary, or objectively, there were considerable circumstances where the plaintiffs are unable to exercise their right to claim damages, or the defendant has expressed the same attitude that he would not waive the benefit of prescription or use prescription against the plaintiffs. Thus, the defendant's assertion on the completion of extinctive prescription cannot be viewed as an abuse of rights against the good faith principle.

① If a public official’s act, which is recognized as a tort, is limited to a harsh act during the course of investigating Plaintiff A, etc. and CV and an infringement of meeting and communication right, it is difficult to view such tort as a case where damages can be paid only through a retrial procedure for the judgment subject to a retrial.

② The Plaintiffs filed the instant lawsuit after the lapse of 35 years after the detention status was terminated, even though they had been aware of the aforementioned tort from around that time.

C) Ultimately, the Plaintiffs’ assertion seeking damages due to this part of tort is without merit.

5. Conclusion

Thus, the plaintiffs AA, BN, and Q are illegal and dismissed. The plaintiffs' claims other than the above plaintiffs are dismissed. It is so decided as per Disposition.

Judges, Senior Superintendent-General

Judges Lee Jae-soo

(1) is prohibited from doing the following acts:

(a) Making or spreading a will or spreading a fact distorted;

(b) The Republic of Korea by means of public radio waves, such as assemblies, demonstrations, newspapers, broadcasting, communications, documents, drawings, sound records, etc.;

Acts of denying, opposing, distorting, or slandering the Constitution, or of asserting, petition, instigating, or publicizing the amendment or abolition thereof.

(d) openly slandering this measure;

The public dissemination of any content in violation of paragraph 1 by means of broadcasting, news, or other means, or the production, distribution, and display of any content thereof.

An act prohibited from being carried, possessed, or exhibited.

(7) Any person who violates this measure or the measures of the competent Minister pursuant thereto shall be punished by imprisonment for a limited term of not less than one year.

The same shall also apply to a person who has committed, prepared or conspired against an attempted crime. The same shall also apply to another person.