[2] Whether an infringement that does not constitute a criminal offense can constitute a civil tort (affirmative)

[3] In a case where a police officer used a gun in the process of suppressing a criminal, thereby causing the death of the criminal, the case affirming a civil tort liability regardless of whether the judgment of innocence against the act of using a gun became final and conclusive

[2] The criminal liability following the tort is held liable for an act violating the legal order of society, and the content of a public sanction (criminal punishment) against an offender is as follows. Civil liability is held individually responsible for an act infringing another person's legal interest, and its content is the compensation for damages inflicted on the victim. The compensation system is the guiding principle, since the fair and reasonable burden of damages is the guiding principle. Thus, even if the act does not constitute a criminal offense, whether it constitutes a tort under the civil law should be examined from a different point of view from criminal liability.

[3] In a case where a police officer used a gun in the process of suppressing a criminal into death, the case holding that, even if the judgment of innocence became final and conclusive in a criminal case by taking into account the motive, purpose, circumstances, etc. causing the use of a gun, the police officer's negligence and the result resulting therefrom are deemed as tort liability under the civil law

1. As to the assertion on the occurrence of liability for damages and the grounds for rejecting illegality

A police officer may use a weapon to arrest an offender, prevent his/her escape, protect the life and body of another person, and suppress resistance to the performance of official duties. However, even in this case, when there are reasonable grounds deemed necessary for accomplishing the purpose, the police officer’s use of a weapon shall be reasonably determined within necessary limits (Article 10-4 of the Act on the Performance of Duties by Police Officers). Whether the use of a weapon by a police officer satisfies such requirements shall be determined based on whether it is reasonable under social norms, taking into account the type and nature of the crime, the severity of legal interests, urgency of danger and injury, the number of criminals and police officers, the kind of weapon, the type of weapon, the attitude of use of weapon, surrounding circumstances, etc. In particular, the requirement should be more strict in using a gun highly dangerous to harm people (see, e.g., Supreme Court Decision 2003Da57956, May 13, 2004). Criminal liability pursuant to an illegal act constitutes a tort committed in violation of social order, and thus, constitutes a civil liability for damages (see, 1979.

The court below, after compiling the relevant evidence, found the facts as a whole. It should have judged whether the deceased non-indicted 1, a police officer, had carefully observe whether the deceased non-indicted 2 possess a knife or any other deadly weapon at the time of the accident in this case, and then whether there is an imminent danger to use the gun against the non-indicted 2. If the non-indicted 1 decided so carefully, the court below determined that even if the non-indicted 2 did not use the gun with no deadly weapon as above, the police officer non-indicted 3 and the non-indicted 4 or the plaintiff 1, etc. on the same job could have prevented violence against the non-indicted 2 in this case. Even if it was possible to reduce the harm by way of launching the body part of the non-indicted 2's body, the court below determined that the non-indicted 2's specific motive or negligence in the criminal case could have been determined by considering the situation where the non-indicted 1 actually caused the death of the non-indicted 2, and that the crime was committed for the aforementioned purpose of the non-indicted 2.

Examining the aforementioned legal principles and the evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the violation of the rules of evidence, the reason and contradiction, the grounds for excluding illegality and negligence, and the probative value of criminal judgment, as alleged in the grounds for

2. As to the assertion on the scope of liability for damages

Where the victim was negligent in causing or expanding damage in a tort compensation case, it should be taken into account as a matter of course in determining the scope of liability for damages. However, fact-finding or determining the ratio thereof as to the grounds for offsetting negligence belongs to the exclusive authority of a fact-finding court unless it is deemed significantly unreasonable in light of the principle of equity (see Supreme Court Decision 2002Da43165, Nov. 26, 2002, etc.).

Examining the relevant evidence in light of the records, the fact finding by the court below as to the grounds for offsetting negligence is just and acceptable to the extent that the determination is acceptable, and there is no error of law such as violation of the rules of evidence and misunderstanding of legal principles as to offsetting negligence, as alleged in the grounds for appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)