(영문) 서울중앙지방법원 2016.6.10.선고 2015가단5328715 판결

1. The defendant shall pay to the plaintiff 3,00,000 won with 5% interest per annum from July 22, 2015 to June 10, 2016, and 15% interest per annum from the following day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant sent to the plaintiff KRW 20,00, 100 and the plaintiff a duplicate of the complaint of this case from July 22, 2015.

5% per annum and 15% per annum from the following day to the date of full payment;

(n)

Reasons

1. Facts of recognition;

A. On August 23, 2014, an investigator affiliated with the Defendant applied for a warrant of arrest on the ground that “the Plaintiff participated in the Sewol ferry on August 15, 2014 and was asked for attendance due to the suspicion of interference with general traffic, but does not comply with the request,” and the Seoul Eastern District Court issued a warrant of arrest against the Plaintiff until December 24, 2014.

B. However, the investigator in charge knew that the term of validity of the above arrest warrant was until August 14, 2024, which is the only date of the statute of limitations for the obstruction of general traffic, and computerized inputs on designated number of copies.

C. On July 21, 2015, the investigator affiliated with the Defendant arrested the Plaintiff on the street near the Plaintiff’s residence. At the time, the investigator did not possess the original copy of the warrant of arrest. On the other hand, the investigator presented to the Plaintiff the matters indicated in the police officer’s portable inquireer, and notified the Plaintiff of the name of the crime indicated in the inquireer, the fact that the warrant of arrest was issued, and the gist of the offense was substituted by the notification of the name of the crime.

D. On July 22, 2015, the Plaintiff was released on July 2, 2015 without any investigation after the arrest.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 2, Eul evidence 1, witness's testimony, witness's testimony, the whole purport of pleading

2. Occurrence of liability for damages;

A. Establishment of tort

According to Articles 200-5, 200-6, 75(1), and 85(1) of the Criminal Procedure Act, where a judicial police officer arrests a suspect, he/she shall notify the gist of the suspected crime, and present the warrant (original) without fail to commence execution after the expiration of the term of validity of the warrant, and return the warrant. In addition, in cases of notifying the gist of the suspected crime, it shall be deemed that simply notifying the name of the crime is insufficient and that notification is required to the extent that it is possible to identify whether a person is detained by a certain crime.

However, according to the above facts of recognition, investigators belonging to the defendant arrested the plaintiff on the ground of arrest warrant with no valid period of time, even though they are the judicial police officers involved in the arrest of the defendant, who have an important duty to observe and guarantee the human rights and criminal procedures of the people, and did not properly notify the plaintiff of the presentation of arrest warrant or the summary of the fact against which the above laws and regulations have been clearly violated, and such acts constituted illegal arrest, and infringed upon the plaintiff's physical freedom. Accordingly, the defendant is obliged to compensate for all damages suffered by the plaintiff due to the plaintiff's intentional or negligent act in the course of performing his/her duties under Article 2

B. Defendant’s assertion and judgment

According to Articles 200-6 and 85 (3) of the Criminal Procedure Act, the defendant may notify the fact that a warrant was issued in the event of urgency, and arrest without presenting a warrant of arrest. The defendant asserts that the plaintiff's actual place of residence and domicile were different at the time of arrest, and that the investigator was arrested only three minutes after telephone conversations with the plaintiff, and there was no time to receive a warrant of arrest from the issuance of a warrant of arrest. Thus, the defendant argues that the situation falls under cases requiring urgency.

Article 85 (3) of the Criminal Procedure Act refers to cases where the location of the defendant is unknown and the execution of a warrant may be considerably difficult if the warrant is already issued until the warrant already issued is obtained. However, as seen earlier, an arrest warrant against the plaintiff has already been issued in a state of validity, it did not meet the requirements for emergency enforcement based on the above law. Furthermore, according to the statement of evidence No. 8 and witness testimony, both the plaintiff's domicile and real place of residence are identical to 39-18, Seongdong-gu, Seoul, and the investigator arrested the plaintiff as the head of the office after telephone call with the plaintiff, and it is difficult to view that the execution of the warrant is considerably difficult. The defendant's above assertion is without merit.

C. As to the plaintiff's claim for issuance of a certified copy of arrest warrant

The plaintiff asserts that the defendant's refusal of the issuance of a certified copy of arrest warrant to the head of the Sungdong Police Station belonging to the defendant to exercise the right of defense as a suspect and to verify the legality of the arrest, which infringes the plaintiff's right of defense and infringes on the right to know and is illegal.

According to Article 101 of the Regulation on Criminal Procedure, a arrested suspect, etc. can request a judicial police officer who keeps a warrant of arrest to deliver a certified copy of the warrant.

However, the right to request the issuance of a certified copy of a warrant of arrest issued by the suspect, etc. under the above provision is a right recognized to guarantee the defense right of the suspect, such as whether the suspect under arrest or detention requests an examination of legality of arrest or any attack and defense during the process of examination of legality of arrest. In full view of the overall purport of pleadings, the Plaintiff’s defense counsel’s application for the issuance of a certified copy of a warrant of arrest issued by the Defendant can be recognized as a facts around August 5, 2015, which is after the Plaintiff had already been already released. Thus, the Defendant’s failure to comply with the Plaintiff’s request for the issuance of a certified copy of the warrant of arrest cannot be readily concluded as an act in violation of

3. Scope of loss;

Taking into account all the circumstances shown in the argument in this case, including the degree of illegality of investigators belonging to the defendant and the details and duration of the suffering suffered by the plaintiff, it is reasonable to determine the amount of consolation money to be paid by the defendant as KRW 3 million.

Therefore, the defendant shall pay 3 million won to the plaintiff and the defendant shall pay 3 million won to the plaintiff the end of the tort of this case.

22. From June 10, 2016, the date of this decision, which is the date of this decision, appropriate for the Defendant to dispute the existence and scope of the obligation, the Defendant is obligated to pay 5% per annum as provided by the Civil Act and 15% per annum as provided by the Act on Special Cases concerning the Promotion, etc. of Affiliation from the next day to the date of full payment.

4. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed for lack of justifiable grounds.