Plaintiff 1 and 3 others (Law Firm Shinn, Attorneys Noh In-in, Counsel for the plaintiff-appellant)

Korea

June 12, 2012

1. The Defendant pays to Plaintiff 1 39,180,945 won, 83,136,363 won, 22,454,545 won to Plaintiff 3, and 28,454,545 won to Plaintiff 4, as well as 5% per annum from June 12, 2012 to June 28, 2012, and 20% per annum from June 29, 2012 to June 29, 2012.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 90% is borne by the Plaintiffs, and the remainder 10% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 52,264,862 won, 1,460, 384,615 won, 331,538,462 won, 391,538,462 won to the plaintiff 3, and 391,538,462 won to the plaintiff 4, and each of them shall be 5% per annum from July 19, 1983 (" July 19, 1973" stated in the correction of claims and cause) to the delivery date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. The background of the case

On December 6, 1981, the non-party 1, who is the third village of the plaintiff 1, was missing in Europe due to the so-called East forest espionage case. On December 6, 1981, the plaintiff 1 met the non-party 3, who is his own child, at the house of the non-party 7th degree 2, who is a member of the Japanese Cho Jong-gun. On December 12, 1981, the non-party 1 met with the non-party 2, etc., and was delivered from the above non-party 3, the sum of 100,000,000 United Nations and one millions, which were delivered by the non-party 3

B. Investigation and prosecution against the plaintiff 1

1) After the plaintiff 1 was dismissed from military service as the defense soldier, the investigator belonging to the Daegu Security Unit was a civilian status. On July 19, 1983, the investigator belonging to the plaintiff 3, who was charged with the violation of the National Security Act, not the Military Criminal Act. At the time, the investigator belonging to the Daegu Security Unit did not receive a warrant of detention, but did not notify the summary of the crime, the reason for arrest, and the right to appoint a defense counsel, and did not provide an opportunity to defend himself. The plaintiff 1 was investigated in an unlawful detention for about 38 days until August 25, 1983 when the warrant of detention was issued.

2) At the time of illegal confinement of Plaintiff 1, investigators belonging to the Daegu Security Unit and the National Defense Security Headquarters led Plaintiff 1 to confession of the suspected facts by committing harsh acts, such as tata, water advisers, electrical advisers, etc. On September 12, 1983, Plaintiff 1 sent the case to the Daegu District Prosecutors' Office, followed by attending the investigation process of the prosecution and creating a strong atmosphere, thereby enabling Plaintiff 1 to fully recognize the suspected facts.

3) On October 11, 1983, the public prosecutor of the Daegu District Public Prosecutor’s Office indicted Plaintiff 1 on the charge that Plaintiff 1 met with a member of the North Korea who is an anti-government organization, received money and valuables from the member of the anti-government organization, and that he embling and encouraging an anti-government organization, thereby benefitting it.

C. Judgment of conviction against the plaintiff 1

1) The plaintiff 1 denied part of the facts charged on the date of the first instance trial of the court of first instance. The plaintiff 1 was subject to reply and intimidation by the investigators belonging to the Daegu Security Team, and reversed them on the second trial date and recognized all the facts charged. The court rendered a judgment of 15 years imprisonment and suspension of qualification against the plaintiff 1 on February 1, 1984, on the basis of the plaintiff 1's false confession in the case of this court Nos. 83 anti-joint605, 83 high group47 (Joint) No. 83 high group No. 8747 (Joint) and 83 high group No. 4747 (Joint).

2) Although Plaintiff 1 appealed against the above judgment of the first instance court, the Daegu High Court, which was the legal basis of the appellate court, accepted without any specific investigation of evidence as to whether Plaintiff 1 had an adviser, etc. in the above case No. 84No311 on June 8, 1984, and found Plaintiff 1 guilty of all the facts charged, without any specific investigation of evidence. However, the judgment reversed the above judgment on the grounds that the sentencing is too heavy, and sentenced Plaintiff 1 to imprisonment with prison labor for 12 years and suspension of qualification for 12 years (hereinafter “the judgment on review”), and the judgment on retrial became final and conclusive around that time.

D. The plaintiff 1's station and security surveillance

The plaintiff 1 was provisionally released on May 25, 1991 among the execution of imprisonment for a final and conclusive judgment subject to a security surveillance disposition on October 20, 193, and the security surveillance disposition was exempted on January 17, 2008. Since the release of the plaintiff 1, the plaintiff 1 suffered physical and mental symptoms due to adviser, and the plaintiff 1 suffered from the physical and mental post-treatment due to his ability for a long period of time, and his family has also suffered economic and mental difficulties due to his ability to shot the criminal record of the special public security case.

E. The truth-finding findings by the Korean War Mediation Commission for Truth and Reconciliation

On January 19, 2009, the Korean History Settlement Commission rendered a truth-finding decision to the effect that, in the Daegu Security Unit that did not have the right to investigate against a civilian, Plaintiff 1 committed an unlawful act, and that, as a result of preventing cruel acts such as illegal confinement and cruel acts, adviser, etc., the State should take appropriate measures to ensure that Plaintiff 1 and the relevant persons should comprehensively die and compromise with respect to the illegal confinement and cruel acts, and that, in order to recover the damage and reputation of Plaintiff 1 and the relevant persons, it is necessary for the State to take pertinent measures, such as retrial, etc., as prescribed by the Criminal Procedure Act, in accordance with the findings of the fact-finding decision to the effect that it is necessary for the State to take pertinent measures, such as retrial, etc. to restore the damage and reputation of Plaintiff 1 and the relevant persons.

F. Finality of judgment on the plaintiff 1

After receiving the truth-finding decision as above, Plaintiff 1 filed a request for a new trial on the judgment subject to a new trial with the Daegu High Court. On February 9, 2010, the above court: (a) the evidence deemed as supporting Plaintiff 1’s charges in the judgment subject to a new trial by the above court No. 2009No. 11 of the above court was collected by the illegal investigation by the Daegu Security Unit; (b) there is no voluntariness or there is no other evidence as a confession made in the state of absence of voluntariness; and (c) other evidence was reversed on the ground that there is no direct relation with the conviction or no credibility, and (d) the court rendered a judgment of two years of imprisonment with prison labor against Plaintiff 1 (hereinafter “new judgment”) with respect to the remaining parts of the judgment subject to new trial on the grounds that Defendant 1 was not guilty. However, the Prosecutor appealed the final judgment as to the new judgment, which became final and conclusive on January 27, 2011.

G. Receipt of criminal compensation by Plaintiff 1

On December 13, 2011, Plaintiff 1 received a decision on criminal compensation from Daegu High Court No. 2011co2, and received KRW 369,273,600 as criminal compensation.

(h) Family relations;

Plaintiff 2 is the mother of Plaintiff 1, and Plaintiff 3 and Plaintiff 4 are the brothers and sisters of Plaintiff 1. Nonparty 4, the father of Plaintiff 1, the father of Nonparty 4 on July 26, 1986, Nonparty 5, the mother of Nonparty 6 on October 25, 1989, Nonparty 6 on June 25, 191, and Nonparty 7, the mother of Nonparty 6 on March 17, 1992, respectively. The inheritance relationship and the share of inheritance due to each of the death are as shown in the attached Form of the share of inheritance.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Determination on the cause of the claim

1) Article 9 of the Constitution of the Republic of Korea (amended by Act No. 10 of Oct. 29, 1987) of the Republic of Korea at the time when Plaintiff 1 was investigated and tried as a case subject to a judgment for review (amended by the Constitution of the Republic of Korea No. 10 of Oct. 29, 1987) provides that all citizens have the duty to confirm and guarantee the fundamental human rights of an individual as a human being. As such, the Defendant has the duty to protect the fundamental human rights of the citizens. Furthermore, Article 11 of the Constitution of the Republic of Korea provides for the freedom and due process of law (Paragraph 1), prohibition of adviser and right to refuse to make statements (Paragraph 2), the right to receive counsel’s assistance (Paragraph 3), limitation on the admissibility of evidence of confession (Paragraph 6). Thus, the Defendant must not make any adviser to obtain a false confession from the citizens, and shall comply with due process of investigation, such as the arrest and detention of the people only by warrant, etc.

2) Therefore, it is unlawful for an investigative agency to arrest and detain a suspect without a warrant of detention when it arrests a suspect without a warrant of detention. Even in the case of arrest and detention by a warrant, it is unlawful unless the requirements for arrest and warrant of detention stipulated in the Criminal Act, the Criminal Procedure Act, etc., and the requirements for warrant of detention are met. In addition, the State as well as the State should not engage in physical and mental harm by using direct and indirect means, such as advisory or intimidation, to receive confessions for criminal prosecution.

3) However, as acknowledged earlier, investigators belonging to the defendant Daegu Security Unit did not comply with due process stipulated in the Constitution of the Republic of Korea and the Criminal Procedure Act at the time of the arrest and detention procedures against the plaintiff 1, and (2) manipulating evidence by receiving false confessions from the plaintiff 1 on the facts charged, such as the National Security Act, and subsequently prosecuted the above plaintiff 1. In addition, although the evidence of the facts charged in this case cannot be readily concluded to be inadmissible or lacking probative value, the first instance court and the appellate court found the defendant guilty of all the facts charged in the judgment subject to a retrial and sentenced the plaintiff 1 to imprisonment with prison labor against the above plaintiff 1, and the defendant, based on unlawful judgment, left the defendant for more than 20 years after recovering the honor of the plaintiff 1 and his family members and neglecting his duty to protect the plaintiff 1's family members without any effort to protect the plaintiff 1 and his family members, the defendant violated the basic duty to protect the plaintiff 1's family members and caused damage to the defendant's family members (hereinafter referred to as "the defendant 1's family members").

B. The defendant's defense and its judgment

1) The defendant asserts that the plaintiffs' claim for damages has expired by prescription in accordance with the provisions of the Civil Act and the National Finance Act.

2) Therefore, the right to claim damages on the ground of tort against the State ceases to exist after the lapse of the extinctive prescription, unless it is exercised within the five-year period as stipulated in Article 96(2) and (1) of the National Finance Act from the date of termination of the tort. It is evident that the plaintiffs' lawsuit of this case was filed on February 1, 2012 after five years from the date of the tort of this case.

However, the exercise of a debtor's right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, where there are special circumstances, such as where the debtor, prior to the completion of the statute of limitations, made it impossible or considerably difficult for the creditor to exercise his right or interruption of prescription prior to the completion of the statute of limitations, acted to make it unnecessary for the creditor to believe that such measures are unnecessary, or where the creditor objectively obstructed the creditor from exercising his right, or where the debtor has shown the same attitude as not to invoke the statute of limitations after the completion of the statute of limitations, or where there is a great need to protect the creditor, and where other creditors of the same condition receive the repayment of the debt, etc., the debtor's assertion for the completion of the statute of limitations is not allowed as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2010Da355

According to the above recognition, Plaintiff 1 was illegally arrested and detained by a government agency, and the facts charged against the said Plaintiff are confirmed to be guilty. Thus, it is reasonable to deem that there was an objective obstacle that the Plaintiffs and creditors were unable to exercise the right to claim damages of this case until a new judgment becomes final and conclusive, considering that it is difficult to reasonably expect to bring a lawsuit seeking damages against the State, a perpetrator, merely because the judgment became effective after the military regime had been revoked without being revoked by a retrial, and merely because the judgment became effective after the military regime became final and conclusive, the mere fact that the judgment became final and conclusive. Therefore, it is reasonable to deem that there was an objective obstacle that the Plaintiffs could not exercise the right to claim damages of this case against the Defendant until it becomes final and conclusive (see, e.g., Supreme Court Decision 2010Da35572, Jan. 13, 2011).

Therefore, the defendant's defense that the extinctive prescription of the plaintiffs' right to claim damages has expired is not permissible because it constitutes an abuse of rights against the principle of good faith.

3. Calculation of the amount of consolation money;

(a) Calculation of consolation money;

1) Determination on the principal of consolation money

Furthermore, as to the amount of consolation money, the calculation of consolation money is shown in the argument of this case. All circumstances from the time when the tort of this case was committed to the time of closing argument of this case shall be comprehensively taken into account. Such consideration shall include factors to increase the amount of consolation money and factors to limit it.

First, as an aggravated factor in the amount of consolation money, ① The illegal act of this case was committed by the state that is obligated to protect the people, ② The plaintiff 1 was arrested on July 19, 1983 and detained on May 25, 191, and was detained on freedom for a long period of eight years (in view of the fact that the two years of imprisonment was sentenced in the judgment of re-determination, the illegal detention period remains for about six years). After the release, the defendant 1 was subject to security surveillance disposition, as well as the North Korea or its members, under special circumstances of the division between South and North Korea, and was subject to restrictions on normal social activities with the criminal record of praise, encouraging, and assist the North Korea or its members, ③ the father, mother, and sibling of the plaintiff 1 were also a member of the anti-government organization or its members, and were socially disadvantaged, economically disadvantaged, and economically disadvantaged, ④ the defendant 1's efforts to recover from property damage due to the illegal act of this case, ⑤ The plaintiff 2's reputation and family members are also unable to be considered.

On the other hand, since the Republic of Korea was divided into the Republic of Korea, the Republic of Korea was constantly receiving consolation money from the non-party 6's political power to return the system. The time of the tort in this case was an urgent need for strong policies to maintain the identity of the State since it was not established widely as much as possible. ② The tort in this case was committed for the purpose of maintaining the identity of the Republic of Korea regardless of the illegality of the means, and it was also difficult to deny the fact that it was contributed to maintaining the dignity of the State. ③ It was part of the history even after the expiration of the time limit for the plaintiffs to receive consolation money from the non-party 6's political power, and it was difficult for the court to find that the non-party 1 and the non-party 6's political effort to return money to the public, and that it was difficult for the plaintiffs to receive consolation money from the non-party 4's political decision by the National Security Act, and that it was difficult for the court to hold the plaintiff 1's own free defense and reasonable compensation.

A) Plaintiff 1: 400 million won

B) Plaintiff 2 and deceased Nonparty 4, the parent of Plaintiff 1: Each of KRW 50 million

C) Plaintiffs 3, 4, and deceased non-party 5, 7, who are siblings of Plaintiff 1

: 20 million won

D) The deceased non-party 6, who is the father's mother of the plaintiff 1: 10 million won

2) Determination on the initial date in reckoning damages for delay to the principal of consolation money

The Plaintiffs claim damages for delay from July 19, 1983, which was the day after Plaintiff 1’s day (hereinafter “Plaintiff 1’s day”) with respect to the principal amount of consolation money, and thus, the Plaintiffs could continuously enjoy the legal interests suffered by the victim if there was no tort. Therefore, in principle, the damages for delay should be deemed to have occurred at the same time as the liability was established in light of the concept of fairness, even if there was no separate demand for performance.

However, in calculating consolation money, all of the circumstances that occurred until the time of the closing of arguments at fact-finding courts are subject to consideration, as well as the national income level or monetary value, which serves as the basis for calculating consolation money, shall also be reflected at the time of the closing of arguments. If the amount of consolation money is determined without any particular change in monetary value, etc. at a time near the time when the tort occurred, there is no special issue even if damages for delay are deemed to occur from the time of tort established. However, if it is deemed that damages for delay occur when the amount of consolation money has been for a long period of three months after the time of the closing of arguments at the time of the tort and when the amount of consolation money has been for considerable change compared with the time of the illegal act, there is a problem of substantial excessive compensation if it is deemed that damages for delay has to occur from the time of illegal act. This situation is clearly distinguishable from the existing circumstances that are based on the computation of consolation money at the time of the occurrence of the illegal act, and it can be said that damages for delay have occurred at the time of the closing of arguments at 10 years or 16 years.

Therefore, in the case of this case where, after the lapse of three months between the time of tort and the time of the closing of argument, considerable changes have occurred from the time of tort to the monetary value, etc. at the time of the closing of argument to be considered, damages for delay to pay consolation money due to tort shall be deemed to occur from the date of closing of argument, which is the base date for calculating consolation money (see, e.g., Supreme Court Decision 2009Da103950, Jan. 13, 2011). Therefore, the part of the plaintiffs' claims seeking compensation for delay from July 19, 1983

(b) Mutual aid for criminal compensation;

According to Article 6(3) of the Criminal Compensation and Restoration of Honor Act, when a person entitled to compensation under other Acts has received compensation for the same cause under this Act, the amount of compensation shall be determined after deducting the amount of compensation. Accordingly, the amount of consolation money inherited by Plaintiff 1 to the consolation money of Plaintiff 1 recognized earlier, and if the amount of consolation money is calculated by deducting the amount of compensation received by Plaintiff 1 to the amount of consolation money, the amount of consolation money actually to be paid by the Defendant to Plaintiff 1 is indicated in the column of “personal amount” in the annexed sheet of calculation of the amount of compensation.

C. Sub-committee

Therefore, the defendant is obligated to pay damages for delay calculated by the ratio of 5% per annum under the Civil Act from June 12, 2012, which is the date of the closing of argument in this case to June 28, 2012, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment, to the date of the decision in this case, that the defendant claims against the plaintiffs as to the existence and scope of the obligation.

4. Conclusion

Therefore, each of the claims of the plaintiffs of this case is justified within the above scope of recognition, and the remaining claims of the plaintiffs are dismissed as they are without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Ma-sung(Presiding Judge)