2015Na2070936 Compensation, etc.

Attached Table 1 is as listed in the plaintiffs' list.

Korea

Seoul Central District Court Decision 2013Da54546 Decided November 25, 2015

June 9, 2016

July 14, 2016

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiffs the amount calculated by the ratio of 5% per annum from December 29, 1978 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Quotation of the first instance judgment

The reasoning of the judgment of the court is as stated in Article 420 of the Civil Procedure Act, except for the addition of the following judgments, and thus, the court’s explanation on the instant case is cited in accordance with the main sentence of Article 420

2. Additional determination

A. The plaintiffs' assertion

The Supreme Court Decision 2013Da217962 Decided October 27, 2014 ruled that the act of an investigative agency or a judge’s judicial duty of an emergency measure is not a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act on the sole basis of the fact that the Emergency Measure No.9 was declared unconstitutional prior to the declaration that the Emergency Measure No. 9 was unconstitutional. The determination that “any intentional or negligent act of an investigative agency or judge who instituted a public prosecution does not constitute a tort by a public official as referred to in Article 2(1) of the State Compensation Act” is an obvious confusion between the perception of illegality and the perception of illegality. At the time of the instant case, an investigative agency or judge, in accordance with the U.S. Constitution and Emergency Measure No. 9, recognized the fact that an intentional or negligent act by a violator of the Emergency Measure No. 9 was committed, and thus, it is recognized that there was an intentional act of an investigative agency, including the purpose or purpose of the Act.

B. Determination

In order for a judge to be held liable for State compensation with respect to judicial acts of a judge, there should be special circumstances to recognize that a judge has clearly exercised the authority vested in him/her, such as where the judge held a trial with unlawful or unreasonable purposes or where the law clearly violates the purpose of the authority vested in him/her (see, e.g., Supreme Court en banc Decision 9Da24218, Jul. 11, 2003; Supreme Court en banc Decision 53Da4640, Jul. 12, 2002; Supreme Court Decision 2001Da46440, Jul. 12, 2002; Supreme Court en banc Order 2013Hun-Ba, Sept. 11, 2003; Constitutional Court Order 2013Hun-Ba, supra; Constitutional Court Order 2013Hun-Ba, supra; Constitutional Court Order 93Hun-Ba, supra; Constitutional Court en banc Order 2013Hun-Ba17, Apr. 17, 20198).

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and all appeals by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, associate judge and assistant judge

Judges Gin Jae-in

Judges Min Il-young