Plaintiff 1

Plaintiff 2 (Law Firm Beneficiary, Attorneys Seo Jung-hee et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Identity, Attorneys Yang Na-in, Counsel for defendant-appellant)

July 10, 2019

Seoul Central District Court Decision 2013Kahap544331 Decided February 13, 2019

1. All appeals filed by Plaintiffs 2 and the appeal filed by the Defendant against the Plaintiffs are dismissed.

2. The costs of appeal between the plaintiff 1 and the defendant are borne by the defendant, and the costs of appeal between the plaintiff 2 and the defendant are individually borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 1 240,00,000 won with the interest of 5% per annum from October 11, 1978, 442,857,143 won to the plaintiff 2, and 5% per annum from November 14, 1977 to the service date of a copy of each complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

A. Plaintiff 2: Revocation of the part against Plaintiff 2 among the judgment of the first instance. The Defendant shall pay to Plaintiff 2 5% interest per annum from November 14, 1977 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

B. Defendant: The part against the Defendant among the judgment of the first instance is revoked, and the Plaintiffs’ claim corresponding to the revoked part is dismissed.

1. Quotation of the first instance judgment

The reasoning of this court’s reasoning concerning this case is as follows: (a) the 10th 11th 10 of the judgment of the court of first instance (hereinafter “Plaintiff 1”); and (b) the 16th 5th 5th son added the following contents; and (c) the additional decision on the plaintiffs’ assertion is the same as the reasoning of the judgment of the court of first instance, and thus, it is cited pursuant to the main text of Article 420 of the Civil Procedure Act.

[Supplementary Parts (Supplementary 16 pages 5]

“On the other hand, the Defendant asserted that the Defendant’s right to claim damages against the Defendant during the period of extinctive prescription, while the Defendant’s assertion is difficult to accept in light of the purport of the Supreme Court Decision 2013Da201844 Decided November 18, 2003, and the Plaintiff 2 was recognized as a person related to democratization movements from July 10, 202 as a person related to democratization movements.”

2. Additional determination

A. Summary of the plaintiffs' assertion

The enactment and issuance of Emergency Decree No. 9 are unconstitutional, and thus illegal in itself, and public officials in charge of investigation and trial following Emergency Decree violated the fundamental rights of the plaintiffs by performing duties following Emergency Decree, which are unconstitutional invalidation by the President. Therefore, since the enactment and issuance of Emergency Decree and the acts of public officials executing the Emergency Decree are all unlawful, the defendant's liability for damages should be recognized.

B. Determination

1) As to the assertion that the enactment and issuance of Emergency Measure No. 9 constitutes a tort by itself

Although Emergency Measure No. 9 was declared unconstitutional and invalid ex post by the court, the exercise of the presidential emergency measures based on the new constitution is a highly political act with high level of politicality, and the President, in principle, assumes political responsibility in relation to the exercise of the national emergency measures, and does not have a legal obligation in response to the individual rights of the people. Thus, such exercise by the President cannot be deemed to constitute a civil tort in relation to an individual citizen (see Supreme Court Decision 2012Da48824, Mar. 26, 2015).

The plaintiffs' assertion in this part is without merit.

2) As to the assertion of an investigation and trial related to Emergency Measure No. 9

In a case where a penal law becomes retroactively null and void due to a decision of unconstitutionality by the Constitutional Court or a court is declared unconstitutional or null and void, even if an investigation is initiated based on the relevant law before the relevant law is declared unconstitutional, and a prosecution is declared final and conclusive, such circumstance alone alone does not lead to the State’s liability for damages arising from a public official’s act of performing duties or judicial duties of a judge in an investigation agency or a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act. Although the Emergency Decree No. 9 is unconstitutional and void as seen earlier, it is difficult to view that the act of a judge in an investigation agency who arrested and detained a suspect without a warrant under subparagraph 9 of the Emergency Decree which was in force at the time and conducted an investigation, or by applying subparagraph 9 of the Emergency Decree, constitutes a tort by a public official’s intentional or negligent act (see, e.g., Supreme Court Decision 2017Da127197, Dec. 3, 2017).

This part of the plaintiffs' assertion is without merit.

3. Conclusion

The judgment of the first instance is justifiable. The appeal by the plaintiff 2 and the appeal by the defendant against the plaintiffs are all without merit, and they are dismissed.

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