Case on Deeming a Ruling of Judicial Compromise Issued Concerning the Claim for State Compensation for Past Incidents

[2014Hun-Ba180, etc. (consolidated), August 30, 2018] * First Draft

In this case, the Court held that, even if compensation money and other allowances for damage suffered in relation to democratization movements has been paid, deeming a ruling of judicial compromise issued concerning psychological damage suffered in relation to democratization movements―the damage that is not related to the compensation and other allowances―infringes the right to claim state compensation and thus violates the Constitution.

Background of the Case

The complainants and movants include (1) persons who were dismissed from employment or were unable to obtain employment because of state agencies that interfered with their existing or prospective employment relations on the grounds of their involvement in labor union activities or in demonstrations against the suppression of press freedom, and their bereaved family members; (2) persons who were sentenced to imprisonment with labor on the charge of violating the Presidential Emergency Measure Nos. 1, 4, and 9 and whose conviction became final, or who were thereafter given a ruling on dismissal of public prosecution or judgment of judicial exemption from prosecution; and their bereaved family members; (3) persons who were sentenced to imprisonment with labor on the charge of violating laws such as the former Martial Law and whose conviction became final, and their bereaved family members.

Acknowledging the above facts, the Commission for Democratization Movement Activists’ Honor Restoration and Compensation (the “Commission”), established under the Act on the Honor Restoration of and Compensation to Persons Related to Democratization Movements (the “Compensation Act”), reviewed cases of the complainants and movants and determined to recognize them or their ancestors as the democratization movement-related persons (the “Related Persons”). During 2002 and 2012, the Commission released decisions to pay compensation and other allowances to the complainants and movants. They approved the Commission’s decisions and then received the compensation.

The Court held the Presidential Emergency Measure Nos. 1, 2, and 9 unconstitutional (Case No. 2010Hun-Ba70, etc.), and the Supreme Court decided the Measure Nos. 1, 4, and 9 were unconstitutional (Case Nos. 2010Do5986, 2011Cho-Gi689, and 2011Do2631). Thereafter, the initial convictions based on violations of the Measures and the former Martial Law were quashed in retrials, and the complainants and movants were acquitted accordingly.

The complainants and movants filed lawsuits against the Republic of Korea to claim compensation for psychological and other damage suffered from the acts of the State, including interference with their labor union activities; acts that led up to their forced termination from employment; interference with their employment opportunities; brutal acts against them such as unlawful arrest, detention, and torture; constant surveillance of them even after they have been discharged from prison; and rendition of judgment of conviction for them under the Presidential Emergency Measures that were held unconstitutional and invalid. While such lawsuits were pending, the complainants and movants filed motions to request constitutional review of Article 18 Section 2 of the former Compensation Act which provided, “If an applicant approves the determination of the payment of compensation and other allowances under this Act, a ruling of judicial compromise is deemed issued concerning damage suffered in relation to democratization movements.” Some courts granted and referred such motions to the Court, whereas the other courts dismissed them. Upon dismissal, the complainants filed constitutional complaints pursuant to Article 68 Section 2 of the Constitutional Court Act.

Subject Matter of Review

The subject matter of review in this case is whether Article 18 Section 2 of the former Compensation Act (enacted by Act No. 6123 on January 12, 2000, and before amendment by Act No. 13289 on May 18, 2015) (the “Instant Provision”) violates the Constitution.

Summary of the Decision

1. Issues

The Court considers that the following issues need to be reviewed in this case: (1) whether the part “damage suffered in relation to democratization movements” in the Instant Provision violates the principle of legal clarity governed by the Constitution; (2) whether the Instant Provision, under which a ruling of judicial compromise is deemed issued when the applicant approves the Commission’s decision to pay compensation, restricts the right to trial by judge who decides cases based on laws and thus infringes the right to trial; and (3) whether the Instant Provision, by deeming a ruling of judicial compromise issued when the applicant approves the payment of compensation, limits prospective claims for state compensation and thus infringes the right to claim state compensation.

2. Violation of the principle of legal clarity

According to a comprehensive review of the legislative purpose of the Compensation Act, the substance of the provisions of the Compensation Act, the written applications filed by the applicants for payment of compensation as well as the written approval of the applicants for the Commission’s determination to grant them compensation, it is reasonable to construe that the part “damage suffered in relation to democratization movements” in the Instant Provision means any and all damage suffered in relation to democratization movements for which the applicants were granted compensation, including psychological damage suffered due to an unlawful act committed by public officials in performing their public duties. Therefore, the Instant Provision does not violate the principle of legal clarity.

3. Infringement of the right to trial

The Compensation Act, through relevant provisions thereunder, guarantees neutrality and independence of the Commission that deliberates on and determines the payment of compensation, provides the Commission with measures to promote its expertise and impartiality in its deliberation process, and gives the applicants the freedom to choose whether to approve the Commission’s determination to grant them compensation. Therefore, the Instant Provision does not infringe the right to trial of the Related Persons and their bereaved family members.

4. Infringement of the right to claim state compensation

While Article 23 Section 1 of the Constitution defines the right of property of all citizens in general, Article 29 Section 1 of the Constitution, by specifically providing the right to claim state compensation, expressly guarantees the right to claim legitimate compensation from the State for direct, indirect, and psychological damage suffered due to an unlawful act committed by public officials in performing their public duties.

The Compensation Act was passed by unanimous consent of the ruling and opposition parties at a plenary session of the National Assembly on December 28, 1999. The legislation was based on a social consensus that it is unjust for the State to refuse its duty to pay compensation to the persons who, by risking their own lives and limbs, fought against the rule of authoritarian regimes that infringed the fundamental rights of all citizens guaranteed by the Constitution and thus contributed to the establishment of democratic constitutional order, and restored and expanded freedoms and rights that people enjoyed at the time, and to their bereaved family members. Against this backdrop, the Instant Provision was implemented on the basis of the presumption that due restoration of honor and payment of compensation to the Related Persons and their bereaved family members are the first step to realizing social justice; it was implemented in order to provide the Related Persons and their bereaved family members with an immediate legal remedy by speeding up the implementation and completion of the process for the payment of compensation after their approval for the Commission’s determination to pay the compensation and to afford stability to the Commission’s payment decision.

Since the part “damage suffered in relation to democratization movements” in the Instant Provision includes “loss” suffered due to a lawful act and “damage” suffered due to an unlawful act, the Court finds that the compensation defined in the Compensation Act has not only the nature of compensation for loss suffered but also for damage suffered. Further, according to the description of the persons entitled to the compensation and the calculation criteria for different types of compensation set out in the Compensation Act and the Enforcement Decree thereof, the compensation, medical allowances, and living allowances under the Compensation Act amount to payments provided to the above persons for the purpose of compensating direct and indirect damage suffered due to unlawful and

lawful acts and ensuring their social protection.

In light of the foregoing, the Court first assessed whether the Instant Provision infringes the right to claim state compensation for direct and indirect damage suffered in relation to property. As mentioned above, the compensation has the nature of reparation for direct and indirect damage suffered. Accordingly, restricting the right of the Related Persons and their bereaved family members, who considered the Commission’s determination to grant them compensation appropriate, approved such determination, and received the compensation, to claim state compensation for direct and indirect damage suffered amounts to barring them from bringing the same claim again, for which they have already been paid appropriate compensation, on the basis of the same fact and damage. Therefore, the Court finds that such restriction is not too excessive.

The Court then assessed whether the Instant Provision infringes the right to claim state compensation for psychological damage suffered. As examined above, the compensation set out in the Compensation Act does not include compensation for psychological damage suffered. Thus, the Related Persons and their bereaved family members who received the compensation have not been awarded appropriate reparation for psychological damage suffered. Taking this into account, the prohibition of the right to claim state compensation for psychological damage suffered on the mere ground that compensation for direct and indirect damage suffered has been paid does not comply with the legislative purpose of the Compensation Act which intended to limit the right to claim state compensation for damage on the premise that appropriate compensation for that damage has been paid; nor is such prohibition thereof in conformity with the purpose of the second sentence of Article 10 of the Constitution which provides the State’s duty to guarantee the fundamental rights of individuals. The prohibition of the right to claim state compensation for psychological damage suffered hence constitutes an unduly excessive restriction of the right to claim state compensation.

Therefore, the part concerning psychological damage in the Instant Provision infringes the right of the Related Persons and their bereaved family members to claim state compensation for damage.

5. Conclusion

In conclusion, the part “psychological damage suffered due to an unlawful act”

pertaining to the “damage suffered in relation to democratization movements” in the Instant Provision violates the Constitution.

Summary of Dissenting Opinion of Two Justices

In view of the legislative purposes of the Compensation Act and the Instant Provision, the part “damage suffered in relation to democratization movements” means any damage, including psychological damage, suffered due to an unlawful act committed by public officials in performing their public duties.

The Court, in reviewing constitutionality of a provision deeming issuance of a ruling of a judicial compromise as in the Instant Provision, has held in a number of prior cases that the right to trial is the fundamental right being violated by such provision. However, whereas it is true that the Instant Provision limits the right to trial in some aspects, it still guarantees neutrality and independence of the Commission, provides the Commission with measures to promote its expertise and impartiality in its deliberation process, and gives the applicants the freedom to choose whether to approve the Commission’s determination to grant the compensation. Therefore, we conclude that the Instant Provision does not infringe the right to trial.

Given that the Instant Provision which merely prescribes when a ruling of judicial compromise is deemed issued does not directly limit the right to claim state compensation, and that the right to trial serves the purpose of guaranteeing other fundamental rights, we find that it is sufficient for the Court to restrict its review to whether the Instant Provision infringes the right to trial and do not see practical benefits of examining whether the Instant Provision infringes the right to claim state compensation.

However, even if we do proceed to examine whether the Instant Provision infringes the right to claim state compensation, the restriction on the right to claim state compensation imposed by the Instant Provision is not considered to be unduly harsh or to give rise to unreasonable results in light of the following facts: the Compensation Act gives the Related Persons and their bereaved family members the freedom to choose whether to approve the Commission’s determination to grant them the compensation and whether to receive the compensation; the application and approval forms concerning payment of the compensation provides a description of the Instant Provision to help them to precisely understand the meaning of the

Instant Provision and to minimize any unforeseeable damage; the Related Persons and their bereaved family members may instantly file a claim for state compensation for damage suffered in relation to democratization movements without following the application procedure for the compensation under the Compensation Act; simple and prompt procedure of paying the compensation to the Related Persons and their bereaved family members in accordance with the Commission’s determination does not necessarily put them at a disadvantage given the amount of time and money that could be spent in filing a lawsuit for damages and the uncertainty in the outcome of trial; and the legislative purpose of the Instant Provision which is to resolve all compensation issues concerning the Related Persons and their bereaved families collectively, immediately, and completely would not be achieved if the Court decided that the part concerning psychological damage in the Instant Provision is unconstitutional and this decision led to dividing the process of seeking remedy for damage suffered in relation to democratization movements into two separate processes. Therefore, the Instant Provision does not infringe the right to claim state compensation.

* This translation is provisional and subject to revision.