2013 Gohap 542502 Damage, Claim

1. A;

2. B

3. C.

4. D.

Korea

May 7, 2014

May 28, 2014

1. The defendant shall pay to the plaintiff A 171,428,571 won, 35,238,094 won, 37,619,04 won, and 5% interest per annum from May 7, 2014 to May 28, 2014, and 20% interest per annum from the next day to the date of full payment.

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

3. One-third of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff A 2,361,355,895 won, 202,380,951 won, 228,51 won, and 228,571,428 won, and each of the above amounts to the plaintiff C and D, 5% per annum from the date of the closing of argument to the date of the pronouncement of the judgment in this case, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. The judgment of conviction against the plaintiff A and the contents of the reinstatement

1) On December 27, 197, Plaintiff A was detained by the President for the purpose of protecting the national security and public order (hereinafter referred to as “Emergency Measure No. 9”) and was charged as Seoul Criminal District Court No. 78Dahap21 around that time. The facts charged are as stated in attached Table 1. (hereinafter referred to as “instant facts charged”).

2) On February 6, 1978, the above court found the plaintiff A guilty of the above indictment and sentenced the suspension of qualification for one year and six months.

3) Plaintiff A appealed with Seoul High Court 78-429, and the appellate court reversed the judgment of the court below on June 10, 1978, and sentenced Plaintiff A to one year and six months of imprisonment with prison labor and one year of suspension of qualification, and sentenced Plaintiff A to a judgment suspending execution for two years with prison labor (hereinafter “the judgment subject to review”). Plaintiff A was released on June 10, 1978. The judgment subject to review became final and conclusive at that time. (b) Plaintiff A’s daily economic newspapers, entry and withdrawal from company, etc., and Plaintiff A was employed as a probationary leader of the Economic Newspapers every day on March 1, 1982 and retired on August 26, 1982.

(c) Judgment of innocence becomes final and conclusive;

1) On May 30, 2013, Plaintiff A filed for a retrial on the judgment subject to a retrial with Seoul High Court Decision 2013No59.

2) On October 11, 2013, the foregoing court rendered a judgment of innocence against Plaintiff A. The reasons for the judgment of innocence are as follows.

(1) The statutes to be applied to facts constituting an offense in a case in which a new trial has commenced are the ones at the time of the judgment of the court of the first instance. Accordingly, in a case where the statutes were amended at the time of the judgment of the new trial, the court shall apply the said statutes to the facts constituting an offense, and in a case where the statutes were repealed, it shall apply Article 326 subparag. 4 of the Criminal Procedure Act to the judgment of acquittal. However, even if the penal statutes were repealed at the time of the judgment of the new trial, if the ‘dispensing' was against the Constitution and has not been effective, it constitutes a cause of innocence under the former part of Article 325 of the Criminal Procedure Act.

② However, the Emergency Measure No. 9 issued based on the Emergency Measure stipulated in Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”) is an infringement on the fundamental rights of only the State guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without meeting the requirements for its issuance. Therefore, even if prior to the cancellation or invalidation of Emergency Measure No. 9, it is unconstitutional and unconstitutional in violation of the decent Constitution, and furthermore, it is apparent that it is unconstitutional and invalid in light of the current Constitution that has the provision guaranteeing fundamental rights infringed by Emergency Measure No. 9.

③ Ultimately, the facts charged against the Defendant who was prosecuted by applying the subparagraphs of paragraphs (7) and (1) of the Emergency Measure No. 9, which is unconstitutional or invalid, fall under “where the Defendant’s case under the former part of Article 325 of the Criminal Procedure Act does not constitute a crime”. Accordingly, the Defendant should be acquitted.

3) The judgment of not guilty became final and conclusive on October 19, 2013.

(d) A claim on criminal compensation;

Based on the above acquittal judgment, the Plaintiff filed a claim for criminal compensation with Seoul High Court 2013Cor164 and received a decision on November 29, 2013 that KRW 32,270,400 as compensation for custody of Plaintiff A, but filed an immediate appeal, and is still pending in the Supreme Court (Supreme Court Decision 2014Mo160). Family relationship and inheritance relationship of Plaintiff A with the Supreme Court (see Supreme Court Decision 2014Mo160).

1) Around the time when Plaintiff A is detained due to the violation of the Emergency Measures in this case, Plaintiff A’s family member was his father, E, mother, f, china, Plaintiff C and D, who is his male, male, and male, and Plaintiff B completed the marriage report with G on November 28, 1978.

2) The father E of the Plaintiff died on March 11, 1979. At the time of the death, the heir had F, Plaintiff A, B, C, and D.

3) G died on October 30, 1988. At the time of death, G had the heir as the heir, Plaintiff B and his heir, H, I.J.

4) The mother of Plaintiff A died on June 30, 2003. At the time of death, Plaintiff A, B, C, and D were the inheritor.

[Recognition] Facts without dispute, Gap 1 through 3, 5 through 11, and 20 evidence (including each number), the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. Judgment on the assertion of defects in the power of attorney

The defendant defense that the lawsuit of this case is unlawful since the plaintiffs' legal representative has not been granted legitimate power of attorney to act on behalf of the plaintiffs. Thus, in full view of the whole purport of the arguments, it is reasonable to see that the plaintiffs' legal representative was legally delegated power of attorney from the plaintiffs. Thus, the above main safety provision of this case is without merit.

B. Determination as to the assertion of the establishment of a judicial compromise under the Act on the Restoration of Honor and Compensation to Persons Related to the Democratization Movement

The defendant submitted a written consent to the decision of the Deliberation Committee on the Restoration of Honor of Persons Related to the Democratization Movement and the Determination of the Compensation Deliberation Committee (hereinafter referred to as the "Compensation Deliberation Committee"), and received living allowances, and formed a judicial compromise based on Article 18 (3) of the Act on the Restoration of Honor of and Compensation to Persons Related to the Democratization Movement (hereinafter referred to as the "Act on the Compensation for Democratization Movement") with respect to the damage suffered by the violation of the Emergency Measures in this case. Thus, the plaintiffs' lawsuit is unlawful because there is no benefit of protecting rights. However, there is no evidence to acknowledge that the plaintiff A received living allowances from the Compensation Deliberation Committee. Rather, according to the result of the fact-finding reply to the Compensation Deliberation Committee of this Court, according to the results of the fact-finding inquiry by the Compensation Deliberation Committee of this case, the plaintiff was not decided by the Compensation Deliberation Committee as a person related to the Democratization Movement and the fact-finding was not paid. Thus, the defendant'

3. Occurrence of liability for damages;

A. Determination on the cause of the claim

1) unconstitutionality of Emergency Measure No. 9

In the event of a serious crisis that is unable to be dealt with by the means of the exercise of power in accordance with the constitutional order at ordinary times, the presidential decision on the national tension which is exercised to ensure the existence of the State should be respected. However, the national emergency power should be exercised within the minimum necessary limit when the State faces a serious crisis, and it must meet the requirements and limits for the exercise of the national emergency power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the “former Constitution”). In this respect, the emergency power under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the “former Constitution”) shall not be an exception. Article 53(1) and (2) of the current Act limits the exercise of the emergency power to “natural or critical financial or economic crisis, or is likely to be threatened with, national security or public safety and order.”

However, the contents of the Emergency Measure No. 9 issued based on this issue are as follows: 'the act of openly disseminating or distorting facts'; 'the act of denying, opposing, distort, or impairing the Constitution of the Republic of Korea by means of public strike, such as assembly, demonstration or newspapers, broadcasting, drawing, and telecommunications, or representations such as documents, drawings, records, etc.; 'the act of openly harming the student's assembly, demonstration or political participation, or other measures except for regular and non-political activities, with the instruction and supervision of the school authorities, or with the prior permission of the head of the school, 'the act of openly referring to the student's assembly, demonstration or political participation, or other measures (each subparagraph of paragraph 1); 'the act of openly spreading the contents of the Emergency Measure No. 9 by means of broadcasting, reporting or other means; 'the act of producing, distributing, possessing, or displaying material contents of the Emergency Measure'; 'the act of violating the Constitution of the Republic of Korea shall be prohibited by imprisonment for a definite term of not less than 1 year; ' the person who violates or 's temporary suspension or temporary action.

In addition, the contents of Emergency Decree No. 9 are seriously restricting freedom of expression or freedom of body and right to petition guaranteed by the Constitution, which is an essential element of democracy, so that the State may guarantee to the maximum extent fundamental human rights of the people, notwithstanding the provisions of Article 8 (Article 10 of the current Constitution), Article 18 (Article 21 of the current Constitution), and Article 10 (Article 12 of the current Constitution), Article 14 (Article 16 of the current Constitution), and Article 23 (Article 26 of the current Constitution) of the current Constitution, which restricts freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution, by denying the principle of the rule of law through the full exclusion of the warrant. Furthermore, Article 23 (Article 26 of the current Constitution) of the current Constitution is prohibited.

The Emergency Measure No. 9, supra, infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the requirements for exercising the said requirements. Therefore, prior to the cancellation or invalidation of Emergency Measure No. 9, this is unconstitutional and invalid in violation of the just Constitution, and furthermore, in light of the current Constitution, which provides for the guarantee of fundamental rights infringed by Emergency Measure No. 9, it is unconstitutional and invalid (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 201

2) Determination

As to the instant case, a public health unit and a public official belonging to the Defendant arrested and investigate the Plaintiff A on the grounds of the Emergency Measure No. 9, which essentially infringes on the fundamental rights of the people guaranteed by the Constitution, and was punished by imprisonment with prison labor for a violation of the Emergency Measure No. 9, 1.6 months and suspension of qualifications for one year and one year and confinement of approximately 166 days constitutes a tort by intention or negligence, and a conviction based on Emergency Measure No. 9, which is unconstitutional and invalid, has been maintained even after the release of the Plaintiff A.

Unless there are special circumstances, the Defendant is liable for compensating the Plaintiffs for damages incurred by the tort in accordance with the main sentence of Article 2(1) of the State Compensation Act, as it is obvious in light of the empirical rule that the Plaintiff A suffered from mental distress due to the Plaintiff’s family member E, mother, F, sibling, Plaintiff B, C, D, and self-employed G, who is the Plaintiff’s family member.

B. Judgment on the defendant's defense of extinctive prescription

1) The defendant asserts that the extinctive prescription period of the plaintiffs' right to claim damages against the defendant has expired when five years have passed from October 1978, which was released after the plaintiff A was detained for violating the Emergency Measures in this case, and that the defendant's right to claim damages against the defendant cannot be allowed as abuse of rights against the principle of good faith.

2) The plaintiffs' right to claim damages against the State for the payment of money is extinguished when they are not exercised for five years under Article 96(2) of the National Finance Act. According to the facts acknowledged earlier, it is evident that the lawsuit in this case was filed on September 12, 2013 after five years from June 10, 1978, from which the plaintiff A was released.

However, the obligor’s exercise of the right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, in special circumstances, such as where the obligor, prior to the completion of the statute of limitations, makes it impossible or considerably difficult for the obligee to exercise his right or the interruption of prescription, acted to make such measures unnecessary, makes the obligee unable to exercise his right, or there exist grounds for the obligee’s failure to invoke the statute of limitations objectively, or when the obligee, or when the obligor, after the completion of the statute of limitations, made the obligee trust, made the obligee’s refusal to perform the obligation significantly unfair or unfair due to such special circumstances as the need to protect the obligee, and other creditors receive the repayment of the obligation under the same conditions, etc., the obligor’s assertion for the completion of the statute of limitations is not permissible as abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 200Da32332, Oct.

In light of the above legal principles, the following circumstances acknowledged as a whole in light of the purport of the arguments on the instant case, namely, (i) while K government declared an emergency martial law and a flexible constitution at the time of emergency, the discussions on pure anti-government demonstrations or a flexible constitution was completely prohibited or the so-called public resistance against the so-called physical system in order to overcome the crisis of the government due to the student movement opposing the human body system; (ii) domestic and foreign political situation and social situation at the time of the issuance of the Emergency Decree No. 9 are the subject of the emergency measure, which are likely to have a serious threat to the national critical crisis or national security or national security, and thus, (iii) it is difficult for the Plaintiffs to reasonably seek damages against the Defendant’s family members, and thus, it is difficult to expect that the Defendant’s efforts to file a new trial and seek damages against the Defendant’s family members with the court during the period of 166 days, and thus, it is difficult to reasonably accept the Defendant’s new judgment as an unlawful act.

3) Accordingly, the defendant's above defense of extinctive prescription cannot be accepted.

4. Scope of liability for damages

(a) Actual profits;

1) Plaintiff A’s assertion

On March 1, 1982, the plaintiff A was employed as a trainee to the Editorial Department of Economic Newspapers every day.

In the absence of any circumstances, on September 1, 1982, a person who had been engaged in a student movement by violating the Emergency Measure No. 9 during the course of becoming a member of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in charge of the company in the company

In doing so, if the Defendant was convicted of the Plaintiff A as a fact of violating the Emergency Measures in this case and was not reinstated, it is obligated to compensate the Plaintiff A for damages equivalent to the lost income of the Plaintiff’s total sum of KRW 1,734,937,619 and KRW 240,692,675, and KRW 1,975,630,294 (= KRW 1,734,937,619 + + KRW 240,692,675, and KRW 1,975,00,000,000,000 were employed as a reporter of the Economic Newspapers every day from September 1, 1982 to January 31, 2015.

2) Determination

On March 1, 1982, Plaintiff A was employed as a trainee of the Editorial State. On August 26, 1982, Plaintiff A retired on August 26, 1982. However, the following circumstances acknowledged by considering the aforementioned evidence and witness testimony as a whole. In other words, Plaintiff A was detained as a trainee of the Economic Newspapers, and the period of withdrawal was more than four years since Plaintiff A was sentenced to suspended sentence, and the new Constitution was abolished and enacted, and it is difficult to view that there was no reasonable causal relation between Plaintiff A and Plaintiff A’s testimony as a witness of the Economic Newspapers. Since it is difficult to recognize that Plaintiff A did not have a reasonable causal relation to Plaintiff A’s daily employment as a witness of the Economic Newspapers, it is difficult to view that there was no reasonable causal relation to Plaintiff A’s employment as a witness of the Economic Newspapers. However, Plaintiff A did not have a reasonable causal relation to Plaintiff A’s employment during the 1980s. In light of the fact that there was no reasonable causal relation to Plaintiff A’s employment.

B. Calculation of consolation money;

1) In calculating consolation money due to a tort, the court’s calculation of consolation money accords with the principle of fair sharing of damages, such as the victim’s age, occupation, social status, property and living conditions, degree of suffering from damage, degree of the victim’s fault and negligence, motive and cause of harmful act, perpetrator’s property attitude, social status and age, and even circumstances on the part of the perpetrator, such as the perpetrator’s negligence, etc. (see Supreme Court Decision 2007Da7149, Dec. 4, 2009). Furthermore, in exceptional cases where damages for delay of compensation liability due to a tort should be deemed to arise from the date of the closing of argument at the time of the conclusion of argument when calculating consolation money as seen below, it is necessary to add consolation money at the time of the conclusion of argument, considering the circumstance where damages for delay should be added from the time of the tort where the liability for consolation money was established.

In full view of all the circumstances revealed in the arguments of this case, including the anti-human rights, organized characteristics, and the importance of illegality of the tort of this case, the period of return of the plaintiff A, the family relationship, property status, the amount of consolation money recognized in the case of the plaintiff A and the other plaintiffs, equity in the amount of consolation money, circumstances after the plaintiff A was released, and the amount of consolation money for the remaining plaintiffs who had a family relation with the plaintiff A at the time of the tort of this case. As to consolation money for the plaintiff A, it is reasonable to determine the amount of consolation money for the plaintiff Eul, the parent of the plaintiff Eul, the E, the E, the 40,000,000 won, the 20,000,000 won, the 20,000,000 won, and the 10,000,000,000 won for the plaintiff's self-employed G, the plaintiff's self-employed person of this case, and the amount of solatium

2) Determination as to the defendant's assertion of criminal compensation deduction

피고는, 원고 A이 형사보상 및 명예회복에 관한 법률(이하 '형사보상법'이라 한다)상 보상금을 지급받았으므로 그 액수만큼 손배해상의 액수에서 공제되어야 한다고 주장하므로 살피건대, 형사보상법 제6조 제3항에 의하면, 다른 법률에 따라 손해배상을 받을 자가 같은 원인에 대하여 이 법에 따른 보상을 받았을 때에는 그 보상금의 액수를 빼고 손해배상의 액수를 정하여야 한다고 규정하는바, 원고 A이 이 사건 긴급조치 위반 사실에 대하여 무죄판결을 받고 서울고등법원 2013코164호로 형사보상을 청구하여 2013. 11. 29. 원고 A의 구금에 대한 보상으로, 32,270,400원을 지급한다는 내용의 결정을 받았으나 이에 즉시항고하여 현재 대빕원에 계속 중인 사실은 앞서 본 바와 같고, 달리, 원고 A이 형사보상금을 수령하였다고 인정할 증거가 없으므로, 원고 A이 형사보상금을 수령하였음을 전제로 한 피고의 위 주장은 이유 없고, 다만, 원고 A이 장차 형사보상금을 수령할 예정이라는 점을 위에서 본 바와 같이 위자료 액수 산정에 고려하기로 한다.

3) Calculation of damages

Based on this, when calculating the amount of damages of the plaintiffs in consideration of their shares of inheritance, as stated in the amount of damages in the attached Table 2. The amount of damages for the plaintiffs A is KRW 171,428,571, and the plaintiff B is KRW 35,238,094, and the plaintiff C and D are KRW 37,619,047.

4) In the event that a considerable change occurs in comparison with the time of tort in the monetary value, etc. at the time of the conclusion of arguments to be taken into account in calculating consolation money as a long-term period has elapsed between the starting point of time of tort and the time of the conclusion of arguments, damages for delay of compensation liability due to tort shall be exceptionally deemed to have occurred from the date of the closing of arguments at the fact-finding court, which is the basis of calculating consolation money (see, e.g., Supreme Court Decision 2009Da103950, Jan. 13, 201). The Plaintiffs seek the starting point of calculating damages for delay of

5) Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff A 171,428,571 won, 35,238,094 won, 37,619,04 won, and 37,619,047 won, respectively, to the plaintiff C, and each of the above money to the plaintiff C, and to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act, from May 7, 2014, which is the date of the conclusion of the argument in this case, until May 28, 2014, which is the date of the decision in this case, and from the next day to the date of full payment.

5. Conclusion

Therefore, the plaintiffs' claim of this case is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the deputy judge

Judges also Dozil

Judges Kim Gin-han