[1] In a case where a penal law becomes retroactively null and void due to the Constitutional Court’s decision of unconstitutionality, or the court declares that a punishment is unconstitutional or null and void, whether the State’s liability for damages arises solely on the grounds that a public prosecution was instituted and a judgment of conviction was rendered on the basis of the

[2] In a case where a judgment of innocence has become final and conclusive in the retrial procedure on the conviction of a violation of the Emergency Measure No. 9 of the former Presidential Emergency Decree for the National Security and the Protection of Public Order (Emergency Measure No. 9), whether the act of a criminal investigation agency or the judicial duties of a judge who has instituted a public prosecution, constitutes a tort by a public official’s intentional or negligent act (negative), and whether the defendant or his/her heir may file a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act (affirmative)

[3] In a case where a judgment of conviction was rendered on the basis of evidence collected by an investigative agency by an illegal act, but the judgment of innocence was made in the retrial procedure under the latter part of Article 325 of the Criminal Procedure Act, whether the State's liability for damages is recognized (affirmative

[4] In a case where a judgment of innocence under the former part of Article 325 of the Criminal Procedure Act becomes final and conclusive on the grounds that the Emergency Measure No. 9 was unconstitutional or invalid in a retrial procedure for a conviction against a violation of the former Presidential Emergency Measure for National Security and Protection of Public Order (Emergency Measure No. 9)

[1] Article 2(1) of the State Compensation Act, Article 750 of the Civil Act / [2] Article 2(1) of the State Compensation Act, Article 750 of the Civil Act, Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980), Article 8(8) of the former Emergency Decree for the protection of national security and public order, Article 2, 3, and 5 of the Criminal Compensation and Restoration of Honor Act / [3] Articles 2(1) and 8 of the State Compensation Act, Article 2(1) of the National Finance Act, Articles 2, 16 of the Civil Act, Articles 179, and 750 of the former Constitution, Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980), Article 325 of the Criminal Procedure Act (wholly amended by Act No. 977, Dec. 8, 1979); Article 97(1) of the former Criminal Act

[3] Supreme Court Decision 2013Da201844 Decided December 12, 2013 (Gong2014Sang, 170)

See attached list of plaintiffs (limited to Law Firm Barun, Attorneys Yu Jong-Un et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Choi financial et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na2010121 decided November 7, 2013

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. (1) In a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared it to be unconstitutional or invalid, even if an investigation was initiated based on the relevant law before the statute was declared unconstitutional, and a public prosecution has been instituted and a conviction has been declared, such circumstance alone alone cannot be deemed as constituting a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act, and thus, the State’s

Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “new Constitution”) which provides the basis for the issuance of an emergency measure for national safety and protection of public order (hereinafter “emergency measure subparag. 9”) fails to satisfy the requirements per se. Moreover, the act of a defendant or a judge who convicted a defendant by arresting and detaining a suspect without a warrant under subparagraph 9 of the emergency measure, or by applying subparagraph 9 of the same Article, is not subject to criminal compensation under Article 53(1) and (2) of the Constitution, since it seriously limits the freedom of expression, the warrant requirement and physical freedom, the freedom of residence, the right to petition, and academic freedom, thereby seriously infringing on the fundamental rights of the people (see Supreme Court en banc Order 2011Hu689, Apr. 18, 2013). However, it is difficult to view that the defendant or a judge’s action of conviction, who was not subject to criminal compensation under Article 93(1) and (2) of the Act, is not subject to criminal compensation.

(2) Meanwhile, in a case where a public institution received a public prosecution based on the evidence collected by an illegal act during the investigation process and the final judgment of conviction was rendered, but the judgment of innocence became final and conclusive in the retrial procedure as “when the defendant's case does not prove the facts constituting the crime,” the State's liability for compensation for damages caused by reinstatement, etc. by the conviction may be recognized. In this case, it shall be deemed that there was an objective obstacle that the obligee could not expect the obligee to claim compensation until the judgment of innocence becomes final and conclusive in the retrial procedure. In this case, even if the obligee did not file a claim for compensation within six months from the final and conclusive date of the judgment of innocence, if the obligee filed a claim for compensation under the Criminal Compensation and Restoration of Honor Act within six months from the final and conclusive date of the judgment of innocence, it may be deemed that the right has been exercised within a reasonable period of time. Thus, the defense of the completion of extinctive prescription by the State of the debtor cannot be allowed as an abuse of rights against the good faith principle (see Supreme Court Decision 2013Da20

However, in a case where the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act (amended by Act No. 9), which is the Act on the Punishment, applied to the defendant in a retrial procedure for the conviction of a violation of Emergency Decree No. 9, becomes final and conclusive on the ground that it is unconstitutional or invalid, barring any other special circumstance, it shall not be deemed that the State’s liability for damages was recognized on the grounds that the crime committed by the State agency, which was committed in the course of the investigation, became final and conclusive on the grounds that the crime committed by the State, was committed in the course of the investigation. Thus, in light of the legal principles as seen above (a) the circumstance that the judgment of innocence became final and conclusive on the grounds that the crime committed by the State, which was committed in the course of investigation, does not immediately constitute a tort committed by the State, and thus, it cannot be deemed that the State’s liability for damages was established. In such a case, whether there was a causal relationship between the act committed in the course of investigation and conviction of the State.

B. Comprehensively taking account of the evidence adopted, the lower court found that (i) Plaintiff 7 was guilty on June 16, 1976 when Plaintiff 2 was enrolled in the fourth grade of the University; (ii) Plaintiff 1 was forced by an investigator of the Daegu District Office on the ground that he/she alleged and instigated the abolition of the Constitution around June 27, 1976; and (iii) Defendant 2 was found guilty on the ground that the lower court was found guilty of violation of Article 25 of the Criminal Procedure Act on the grounds that the lower court’s judgment became final and conclusive on July 14, 1976, which became final and conclusive on the ground that Defendant 2 was not guilty on the ground that Defendant 1 and 7 violated the former part of the Criminal Procedure Act; and (iv) Defendant 2 was found guilty on the ground that the lower court was found guilty on the ground that the lower court’s judgment was final and conclusive on the ground that the lower court was found guilty on the ground that it violated Article 27 subparag. 1 and 7 of the Criminal Procedure Act. 21.

C. Examining these facts in light of the aforementioned legal principles and records, the retrial commenced on the grounds that the investigator involved in the investigation based on the indictment of the plaintiff 1 and 7 had committed a crime related to his duties (Article 124 of the Criminal Act) as grounds for retrial under Article 420 subparagraph 7 and Article 422 of the Criminal Procedure Act, and the non-party involved in the same case was found guilty due to an unlawful act of the government agency, such as where the judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act becomes final and conclusive as to the same non-party's violation of public law in the retrial, etc. In light of these evidentiary materials and the evidence and the written statement of related persons for proving guilt submitted in the criminal trial, the plaintiff 1, 7 and the parties involved in the case were dissatisfied with the suspicion of the crime, but there was a lack of discretion or a statement unfavorable to the defendant due to harsh acts such as adviser during the investigation process, and the remaining evidence for conviction is insufficient or mere circumstantial evidence is acknowledged. In full view of these circumstances, it can be found that there were high probability of the plaintiff 197.

Meanwhile, until February 24, 2012, the judgment of innocence against Plaintiff 1 and 7 became final and conclusive, it can be deemed that there was an objective disability that the Plaintiffs could not expect to exercise the right to claim damages of this case against the Defendant. The Plaintiffs 1 and 7 filed a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act within six months from the final and conclusive date of the judgment of innocence on which the grounds for such disability cease to exist, and the Plaintiffs filed the instant lawsuit within six months from the final and conclusive date of the judgment of innocence on which the grounds for such disability cease to exist, and thus, the Plaintiffs exercised their right within a reasonable period that could prevent

D. Although the reasoning of the judgment below did not contain improper points, the court below recognized the State's liability for damages and rejected the defendant's defense of the expiration of the extinctive prescription. In conclusion, the court below did not err by misapprehending the legal principles as to the establishment of the State's liability for damages, or by misapprehending the legal principles as to abuse of rights of the extinctive prescription defense

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is reasonable to determine that the defendant separately classified and managed them even after the release of the plaintiff 1 and 7, and that the plaintiff 1 and 7 continued to make intimidation and surveillance for those who have established their family relations with the above plaintiffs, thereby suffering from mental suffering. The decision of the court below ordering the defendant to pay consolation money to those who have established their family relations with the above plaintiffs 1 and 7 after the release of the plaintiff 1 and 7 is just and there is no error in the misapprehension of legal principles as to the principle of evidence judgment or the violation of the rules of evidence

3. As to the third ground for appeal

In calculating consolation money due to a tort, considering the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim's intentional or negligent act, motive and cause of the harmful act, and the perpetrator's attitude after the tort, together with the circumstances on the part of the perpetrator, also conform to the principle of fair liability for damages. The court may determine consolation money at its own discretion, taking into account such various circumstances into account (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 1999; 2007Da7149, Dec. 24, 2009). Meanwhile, in exceptional cases where compensation liability for consolation money due to a tort should be calculated from the date of the closure of the arguments in fact-finding proceedings, it is necessary to determine consolation money at the time of the conclusion of the arguments in fact-finding proceedings with due consideration of the situation where damages for delay can be calculated from the date of the arguments in fact-finding proceedings.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the amount of consolation money recognized by the court below cannot be deemed to have been excessive to the extent that it goes beyond the bounds of discretion of the fact-finding court. Furthermore, there is no error of law as alleged in the ground of appeal in the process of calculating consolation money

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Jo Hee-de (Presiding Justice)