1. The Presidential Emergency Decree for the Protection of National Security and Public Order (hereinafter referred to as “Emergency Decree No. 9”) fails to meet the requirements per se stipulated in Article 53 of the Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980) at the time of the issuance of the Emergency Decree. Moreover, it is deemed unconstitutional and invalid since it seriously limits the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom as stipulated in the Constitution of the Republic of Korea and the current Constitution at the time of the issuance of the Emergency Decree (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

Therefore, in a case where the defendant was arrested and detained in violation of Emergency Measure No. 9 and was found guilty, and the conviction became final and conclusive 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.

2. Where a new trial is commenced on the grounds that a judgment of conviction has become final on the basis of evidence collected by a State agency on the grounds that a crime related to duties, such as Article 124 of the Criminal Act, was committed during the course of investigation, and where a judgment of innocence became final on the grounds that the evidence collected by such illegal act in the new trial procedure falls under “when the defendant's case falls under “when there is no proof of criminal facts” as provided in the latter part of Article 325 of the Criminal Procedure Act due to

However, in a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, 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 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, such as arrest and detention of an investigation agency or judicial duties of a judge. Therefore, in a case where an investigation agency arrests and detains a suspect according to the procedure prescribed in the relevant emergency measure at the time of the enforcement of the Emergency Measure No. 9, and a judge made a judgment of conviction, even though the unconstitutional or null and void was declared unconstitutional as to the Emergency Measure No. 9, if the Defendant case applying the said emergency measure at the retrial proceeding does not constitute a “crime”, such investigation and judicial action cannot be deemed to constitute a tort immediately.

However, in such a case, in full view of the contents of the facts constituting an offense charged in the prosecution, the existence of evidence to acknowledge a guilty, the grounds for the decision to commence a retrial, the circumstances leading up to being acquitted by the person related to the case including the defendant, and the reason why the person related to the case was rendered a judgment of not guilty under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation under Article 325 of the Emergency Measures Act, even if there was no reason for innocence under the former part of Article 325 of the Criminal Procedure Act, it is proved that the investigator involved in the investigation based on the indictment committed an offense related to his/her duties, and there was a high probability as to the existence of a reason for retrial under the latter part of Article 325 of the Criminal Procedure Act, such as the grounds for retrial under Article 420 subparagraph 7 and Article 422 of the Criminal Procedure Act, the State may recognize causation between the illegal act committed during the investigation process and the conviction, and accordingly

3. The reasoning of the lower judgment and the record reveal the following facts.

A. On October 26, 1976, the Plaintiff was arrested on the criminal charge of violation of Emergency Decree No. 9, and was indicted on the charge of violation of the Ulsan Police Station’s Emergency Decree, and on April 29, 1977, on the charge of imprisonment with prison labor for three years and suspension of qualifications for three years in the above court. The Plaintiff appealed against the above judgment and was released from the court. At the appellate court, one year of imprisonment with prison labor for the Plaintiff and two years of suspension of qualifications for the Plaintiff (Seoul High Court Decision 77Do942 delivered on March 10, 1978; hereinafter referred to as “the Judgment on Review”) and the judgment subject to a retrial became final and conclusive by dismissing the appeal.

B. On June 3, 2011, the Plaintiff filed a petition for a retrial on the judgment subject to a retrial with Seoul High Court 201Reno.90. On April 19, 2013, the new trial court rendered a decision to commence a retrial on the ground that, once the Emergency Decree No. 9 was previously rendered on April 19, 2013 to the effect that there is a new evidence to acknowledge innocence against a person who was sentenced to a crime of oil, it constitutes a new case where evidence to acknowledge innocence is discovered. On August 16, 2013, the new trial decision applied the Emergency Decree No. 9, which is unconstitutional and invalid, and thus, the facts charged constitute "an offense under the former part of Article 325 of the Criminal Procedure Act." The judgment became final and conclusive. Based on the above new judgment, the Plaintiff received a criminal compensation for the detention period as Seoul High Court 2013co121, and received a final and conclusive decision on September 30, 2014.

4. According to the legal principles as seen earlier, even if the Plaintiff was arrested, detained, and convicted of having been convicted of violating Emergency Decree No. 9 as seen above, such circumstance alone alone does not immediately lead to a State agency’s investigation or trial act constituted a tort. Even if there were no grounds for innocence under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidity of Emergency Decree No. 9, etc., the investigator who participated in the investigation based on the public prosecution proves that he/she committed a crime related to his/her duties, and there should be proof of high probability as to the existence of grounds for innocence under the latter part of Article 325 of the Criminal Procedure Act, such as recognizing the grounds for retrial under Article 420 subparag. 7 and Article 422 of the

Nevertheless, the court below held that there is no evidence to acknowledge the fact that the plaintiff's custody interferes with the defense counsel's right to meet and communicate with the defense counsel during the period of detention and forced the investigative agency to seal documents prepared voluntarily by the investigation agency. However, the court below recognized the defendant's tort liability on the ground that the public officials belonging to the defendant arrested and detained the plaintiff without the warrant and did not disclose the actual period of detention in the trial proceedings based on Emergency Decree No. 9, which affected the conclusion of the judgment by misapprehending the legal principles as to the establishment of tort.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Kim Gin-young