(2017 Inventory 4 Violation of National Defense Security Act)

Law Firm Dog, Attorney Park Jae-sung, and Kim Jong-han

Payment shall be made.

The record reveals the following facts.

A. The claimant was indicted for a charge of the implementation of insurrection under the former Criminal Act (referring to the Japanese Criminal Act (Act No. 61 of 1941), which was enacted on March 20, 1948 by the Military Court Act No. 176 of April 1, 1948) and was sentenced to a conviction of one year of imprisonment at the High Military Court Council on December 5, 1948, and the above judgment became final and conclusive around that time.

B. The claimant was detained for 304 days from December 5, 1948 to October 4, 1949, which was the date of the above judgment.

C. The claimant filed a petition for review of the final and conclusive judgment with Jeju District Court 2017 Inventory 4 (hereinafter referred to as “new trial case”). This court accepted the petition and rendered a ruling dismissing a public prosecution against the claimant on January 17, 2019 following the pleading after the second trial decision was rendered on September 3, 2018. The judgment dismissing the public prosecution became final and conclusive on January 25, 2019.

D. The claimant was present at the trial date on six occasions in the case of reexamination, and the law firm Loma was appointed as a defense counsel.

2. Determination

(a) Compensation for detention;

1) Occurrence of a claim for detention compensation

According to the facts found above, the claimant was not required to specify the facts charged against the claimant in the retrial case, and ② the judgment dismissing the prosecution was rendered on the ground that the conviction did not comply with the prosecution procedure prescribed in the former National Defense Security Act, but any evidence corresponding to the facts charged by the claimant on the record has not been submitted. Therefore, if there was no reason to dismiss the prosecution, the claimant can claim compensation for detention because he fell under the case where there was a significant reason to be acquitted.

In addition, as seen earlier, the claimant was detained for 304 days due to the above conviction, and there is no special circumstance that does not provide any compensation under each subparagraph of Article 4 of the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”) in this case. Thus, the compulsory appearance can claim against the State for compensation for the above detention under Article 2(1) of the Criminal Compensation Act.

2) Scope of compensation for detention

Article 5(1) of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the same Act provide that the minimum limit of compensation for detention is five times the amount of daily minimum wage under the Minimum Wage Act of the year in which the cause of the claim for compensation arises, and the upper limit is five times the amount of daily minimum wage under the Minimum Wage Act of 2019. Since the daily minimum wage amount under the Minimum Wage Act of 2019 in which the cause of the claim for compensation (determination of innocence) arose, the lower limit of compensation is 66,800 won per day, and the upper limit is 334,00 won per day (=6,800 x 5).

Considering all the circumstances stipulated in Article 5(2) of the Criminal Compensation Act, such as the type and period of detention recorded in the records of this case, the degree of loss incurred during the period of detention, mental suffering, occupation and living level of the pertinent state agency, and the existence of intent or negligence by the pertinent state agency, etc., the amount of compensation for the claimant is reasonable to be determined at KRW 334,00 per day, which is the maximum amount stipulated in the above Act, for all the 304 days under detention. As such, the amount of compensation for the claimant’s detention is KRW 101,536,000 (=334,000 x 304 days).

(b) Cost compensation;

1) Occurrence of a claim for compensation

According to the above facts of recognition, the claimant has no reason falling under Article 194-2 (2) of the Criminal Procedure Act, and the claimant has the right to claim compensation for the expenses incurred in the second instance of the acquittal case in accordance with Article 194-2 (1) of the Criminal Procedure Act

2) Scope of compensation

(A) daily allowances and travel expenses of the claimant;

The provisions concerning witnesses of the Criminal Procedure Costs Act shall apply mutatis mutandis to the amount of compensation according to travel expenses and daily allowances spent by a person who was a defendant to attend a preparatory hearing and a trial date (Article 194-4(1) of the Criminal Procedure Costs Act).

According to Articles 3(2) and 4(2) of the Criminal Procedure Costs Act, the amount of daily allowances and travel expenses for a witness shall be determined by the court within the scope prescribed by the Supreme Court Regulations. Accordingly, Articles 2 and 3 of the Rules on Criminal Procedure Costs, which are the Supreme Court Rules, shall be determined by the Supreme Court Justices' Council within the scope of annual budget, and the daily allowances of a witness shall be determined by the Supreme Court Justices' Council within the scope of annual budget, and the travel expenses of a witness shall be the amount corresponding to subparagraph

Accordingly, the daily allowances of the witness determined by the Supreme Court Justices' Council shall be 50,000 won per day of 2017, 2018, and 200 won per day of 2019, respectively, and the travel expenses paid by the court to the witness who has an ordinary address in Jeju who is the applicant's domicile regarding the above period are 2,00 won.

According to the records, the claimant is recognized to have attended six times on the date of the above retrial, and it is reasonable to determine the amount of compensation for the claimant as 312,000 won (per day 50,000 won + travel expenses 2,00 won) x 6) which is the amount able to compensate in accordance with the relevant provisions.

B) Defense counsel fees

The provisions of the Criminal Procedure Costs Act concerning the remuneration of counsel shall apply mutatis mutandis to the public defender (Article 194-4 (1) of the Criminal Procedure Act).

According to Article 8(2) of the Criminal Procedure Costs Act and Article 6 of the Rules on Criminal Procedure Costs, etc., the remuneration of a public defender shall be paid by the Supreme Court Justices' Council within the scope of each annual budget to each instance, and the remuneration of a public defender shall be paid by the competent judge within the scope of budget in consideration of the difficulty of the case, the details of duties performed by a public defender, the time required for the handling of the case, etc.

According to the records, the claimant's appointment of the sea floor of the retrial case as a defense counsel is recognized. Considering the difficulty of the retrial case, the contents of the duties performed by the defense counsel, the time required for the handling of the case, etc., it is reasonable to determine the remuneration of the defense counsel of the retrial case as KRW 1,00,000.

C. Determination on damages for delay

The claimant also claims for compensation for confinement and cost at a rate of 5% per annum from the day following the date of the claim for compensation in the instant case until the day full payment is made. However, the right to claim compensation for a penalty is a public law right that forms specific contents under the Criminal Compensation Act and the Criminal Procedure Act, and the right to claim compensation for the State, i.e., the right to claim compensation for the criminal compensation, and the right to claim compensation for the State only when the claimant has become final and conclusive by exercising the right to claim compensation, and the due date comes after the claimant exercises the right to claim compensation finalized (see, e.g., Article 194-5 of the Criminal Procedure Act; Articles 21 and 21-2 of the Criminal Compensation Act; Supreme Court Decision 2015Da23411, May 30, 2017). Therefore, the claim for compensation in this part is without merit.

3. Conclusion

Therefore, the State is obligated to pay 1,312,00 won (i.e., travel expenses + 312,000 won + 1,000,000 won for attorney’s fees) to the claimant as compensation for detention, and thus, it is so decided as per Disposition.

August 21, 2019

Coordination Benefits

Kim Jin Kim