[손해배상(기)]〈성폭력범죄의 소년 피의자들이 경찰의 피의자신문조서 작성시 직무상 의무 위반을 이유로 국가배상책임을 구하는 사건〉[공2020상,962]
[1] The meaning of "violation of the Acts and subordinate statutes" in state liability, and whether the investigative agency violated the limits under the Acts and subordinate statutes or the sound reasoning when conducting criminal investigations constitutes "violation of the Acts and subordinate statutes" (affirmative)
[2] In a case where a suspect is a socially disadvantaged person, including a juvenile, whether an investigative agency is obligated to pay more careful consideration to prevent disadvantages to the suspect’s exercise of his/her right of defense during the investigation process (affirmative), and in a case where an investigative agency prepares a protocol of suspect interrogation in violation of the above duties by intention or negligence and thereby practically infringes on the suspect’s right of defense, whether the state’s liability is established
[1] In the state liability of compensation, a public official’s harmful act should be in violation of the statute, and the violation of the statute is not only a violation of the strict meaning of the statute, but also a violation of the rule or norm that should be observed as a public official, such as respect for human rights, prohibition of abuse of power, and good faith, and thus, its act lacks objective legitimacy. Thus, if an investigative agency violated the limitation of the law or sound reasoning that should be observed while conducting criminal investigation, it constitutes a violation of the statute.
[2] In performing duties such as investigation, an investigative agency has the duty to respect the human rights of the people in accordance with the Constitution and laws, to ensure fairness, and to find substantial truth. In particular, in cases where a suspect is a socially disadvantaged person, such as a juvenile, a police officer is obligated to pay more careful consideration to prevent disadvantages to the exercise of the right to defense during the investigation process. Therefore, in the process of making a statement of a suspect in the protocol, the police officer must maintain objectivity of the protocol, and in cases where it is recognized that the preparation of a suspect interrogation protocol in violation of the above duties intentionally or by negligence infringed on the suspect’s right to defense, the State shall compensate for losses
[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act
[1] Supreme Court Decision 2007Da64365 Decided June 12, 2008
Plaintiff 1 and nine others (Attorney Park Young-young, Counsel for the plaintiff-appellant)
Republic of Korea (Government Law Firm Corporation, Attorneys Choi financial et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2014Na2018665 decided May 28, 2015
All appeals are dismissed. The costs of appeal are assessed against each party.
The grounds of appeal are examined.
1. As to the Defendant’s ground of appeal
A. In the state liability of compensation, a public official’s harmful act should be in violation of the law. The violation of the law is not only a violation of the strict meaning of the law, but also a violation of the law, such as respect for human rights, prohibition of abuse of power, and good faith, and thus, its act lacks objective legitimacy. Thus, if an investigative agency violated the legal or logical limits that should be observed in the course of criminal investigation, it constitutes a violation of the law (see Supreme Court Decision 2007Da64365, Jun. 12, 2008, etc.).
In performing duties such as investigation, etc., an investigative agency has the duty to respect and ensure fair human rights of the people in accordance with the Constitution and laws, and to endeavor to discover substantive truth. In particular, if a suspect is a socially disadvantaged person, such as a juvenile, etc., he/she is obligated to pay more careful consideration to prevent any disadvantage to the exercise of the right to defense during the investigation process. Therefore, if the police officer maintains objectivity in the process of making the statement of the suspect in the protocol, and if it is recognized that the suspect’s right to defense was practically infringed by preparing a suspect interrogation protocol in violation of the above duty on purpose or by negligence, the State shall compensate for
B. The lower court: (a) prepared an interrogation protocol on Plaintiffs 3 and 6, the Defendant’s police officers, who were juveniles, and maintained the first instance judgment recognizing the Defendant’s liability for consolation money, on the ground that: (b) the actual interrogation and statement was an answer to the question of specific investigative agencies on the date, time, place, conduct prior to and preparation for the crime, process and details of the crime, details of the crime, etc.; (c) however, the majority of the questions were the answer; (d) there was negligence in the course of failing to prepare a protocol and maintain objectivity of the protocol as if they were voluntarily made a specific statement from the suspect by changing the content of the answer; and (e) this was at the time of the examination of the quality of warrant and its subsequent prosecution investigation process, which affected the Defendant’s exercise of the right of defense as the Defendant’s suspects, including the Plaintiffs, and
C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to negligence in preparing a protocol by a suspect or police officer, defense right and mental suffering, and causation between the police officer’s breach of duty and the damage, etc., without exhaust all necessary deliberations as seen in the grounds of appeal.
2. Regarding the plaintiffs' grounds of appeal
A. On the grounds indicated in its reasoning, the court below rejected all the claims that Defendants 1, 3, 6, and 9 did not comply with due process by illegally excluding the attendance of the trusted person at the time of interrogation, or that they did not substantially guarantee the right to refuse to make statements and the right to counsel’s assistance in preparing a suspect interrogation protocol against Plaintiffs 3, and 6, that the above plaintiffs operated hearsay evidence by intentionally adding the contents that the plaintiffs did not make any statement, or describing contents entirely different from the purport of the statement, and that the judicial police officer illegally confiscated an interview at the arrest site of the plaintiffs 9 and forced confession by using it. The court below rejected all the claims that Defendants 1, 3, 6, and 9 were detained by the suspect interrogation protocol prepared by the judicial police officer, which caused damage equivalent to the attorney’s expense.
In addition, the court below maintained the judgment of the court of first instance that determined consolation money for the plaintiffs due to negligence in the course of performing duties, such as the above 1-B., in preparing a protocol of interrogation of plaintiffs 3 and 6 by judicial police officers.
B. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles on the duty of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment, such as recognizing facts beyond the bounds of the principle of free evaluation of evidence, or by misapprehending the duty of an investigation agency to prepare an objective protocol under the Criminal Procedure Act or contrary to the reasoning and experience, causation between unlawful preparation and detention, causation between the investigation rules regarding juvenile cases, contents of investigation rules regarding juvenile cases, participants in the company with trust relationship and suspect interrogation, guaranteeing the right to assistance and right to refuse to make statements, legitimacy of seizure, pollution of
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Noh Jeong-hee (Presiding Justice)