(영문) 서울중앙지방법원 2015.11.26.선고 2013가합544584 판결

1. Of the instant lawsuit, the part of the Plaintiff’s claim for consolation money and the part of the Plaintiff’s claim for consolation money inherited from G of Plaintiffs B, C, D, E, and F shall be dismissed in entirety.

2. Attached 1. The plaintiffs' claims and the remainder of the plaintiffs A, B, C, D, E, and F listed in the Serial Nos. 2 through 29, 35 through 44 of the plaintiff's list are all dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The defendant shall pay to the plaintiffs 2. [Attachment 2. [Attachment 2.0% of the amount of damages to each plaintiff] amount with 5% interest per annum from December 2, 1978 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

Reasons

1. Facts of recognition;

(a) Issuance of emergency measures by the President;

1) Pursuant to 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”), the Presidential Emergency Decree for the National Security and the Protection of Public Order (amended by Presidential Emergency Decree No. 9 of May 13, 1975; hereinafter referred to as the “Emergency Decree No. 9”) was issued on December 7, 1979.

2) Article 9(1)(a) of the Emergency Measures Act prohibits “act of harming, spreading, or distorting facts”, and Article 9(1)(b) prohibits “act of denying, opposing, distorting, or slandering, or instigating or publicizing the Constitution of the Republic of Korea by means of public radio waves, such as assembly, demonstration, newspapers, pictures, and broadcasting, and broadcasting, or by means of communication, or by means of documents, drawings, videos, and music records, etc.,” and Article 9(2) prohibits “act of openly disseminating, distributing, selling, possessing, or displaying the contents thereof by means of broadcast, news, or by other means, or by means of a broadcast or news report, or by other means, or by producing, distributing, distributing, possessing, or displaying, the contents thereof.” Article 9(7) of the Emergency Measures Act provides that “an act of violating it shall be punished by imprisonment with labor for

3) Meanwhile, Article 9 (8) of the Emergency Measures Act provides that a person who violates Emergency Measures No. 9 may arrest, detain, seize, or search without a judge’s warrant.

B. The judgment of conviction against Plaintiff A, H, I, and G

1) Plaintiff A, H, I, and G (hereinafter referred to as “Plaintiff A, etc.”) were indicted for violating the Presidential Emergency Decree No. 9 (hereinafter referred to as “Emergency Decree”) and the Presidential Emergency Decree No. 9 (hereinafter referred to as “Emergency Decree”) and the charges of violating Emergency Decree No. 4. The judgment of conviction was rendered on the charges of violating Emergency Decree No. 4.

2) The instant case was detained by the Plaintiff A, etc., and that period is as follows. In other words, for 474 days from March 31, 1978 to July 17, 1979, Plaintiff H was detained for 84 days from September 9, 1977 to December 31, 1979, Plaintiff 1 was detained for 157 days from December 2, 1978 to August 15, 197, and G was detained for 478 days from April 25, 1978 to August 15, 1979.

1) Plaintiff A, H, I, and G’s children filed a petition for a retrial against each of the instant judgment subject to a retrial (Plaintiff A: Gwangju District Court Order 201 Inventory27 dated November 8, 2012; Decision 201No. 2011 Inventory30 dated November 8, 2012; Plaintiff H: Gwangju District Court Order 201No. 8 dated April 24, 2014; Decision 2013No. 8 of Gwangju High Court Order 2013No. 8: G: November 8, 2012).

2) On the ground that the Emergency Decree No. 9 on the violation of emergency measures in a new trial case commenced following the decision to commence the above new trial becomes null and void, the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act (Plaintiff A: Gwangju District Court Decision 2011 Inventory27 Decided February 5, 2013, Plaintiff H: 201 Inventory30 decided February 14, 2013, and Gwangju High Court Decision 2013No120 decided July 25, 2013, Plaintiff I: 2013No8 decided May 29, 2014, G: Gwangju High Court Decision 201No205 decided February 5, 2013; the judgment became final and conclusive; Plaintiff 30 KRW 50 decided February 3, 2013; Defendant 1 and heir 25 were subject to criminal compensation; Defendant 30 KRW 50 decided July 29, 2014; Defendant 1 and heir 362, 305 others were subject to the pertinent criminal compensation.

D. The plaintiffs' relationship

The specific relationship between the rest of the plaintiffs except the plaintiff A, H, and I as the family members of the plaintiff et al. is as shown in the attached Form 2. [the list of damages for each plaintiff], and the inheritance relationship is as shown in attached Form 3.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 13 (including provisional number), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. Defendant’s defense

Since Plaintiff A and G submitted written consent to the determination of the Compensation Deliberation Committee on the restoration of honor of persons related to democratization movements and the payment of living allowances by the Compensation Deliberation Committee and received living allowances, judicial reconciliation was established between Plaintiff A and G and the Defendant on the violation of Emergency Measure No. 9. Accordingly, the Plaintiffs’ lawsuit on this part is unlawful.

B. Relevant legal principles

The Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movements (hereinafter referred to as the "Act on Democratization Movement") provides that the purpose of this Act is to promote the stability of their lives and the improvement of their welfare by restoring honor and compensating persons who have sacrificed in relation to democratization movements and their bereaved family members, and to contribute to the development of democracy and national harmony. Article 2 subparagraph 1 of the same Act provides that "divatization movements" means activities that contribute to the realization of ideology and values pursuing the Constitution and the establishment of democratic constitutional order and to the establishment of democratic constitutional order by resisting the fundamental rights of the people guaranteed by the Constitution on or after March 24, 1964, and that are related to democratization movements by attaching a written consent of the Commission (hereinafter referred to as "related persons"), and Article 2 subparagraph 1 of the same Act provides that "the persons related to democratization movements shall be entitled to receive compensation, such as those related to democratization movements and those who have obtained consent to receive compensation under the provisions of Article 4 (1) of the Civil Procedure Act or those who have received consent to receive compensation from the Commission without delay:

In addition, Article 20 of the Enforcement Decree of the Democratization Compensation Act provides that "where an applicant who has received a notice of decision to pay living allowances or a notice of decision to restore his/her reputation intends to receive compensation, etc., he/she shall submit to the Committee a written consent and a written application stating the following matters (attached Form 10), accompanied by one copy of the decision to pay the principal of the living site or the original decision to restore honor and one copy of the applicant's certificate of the applicant's personal seal impression," and stipulates that "Where the applicant has received the compensation, etc., he/she shall enter into a compromise contract with respect to the case, and he/she shall not claim it again in any way in relation to the case."

In addition to the legislative intent of the Act on the Democratization Compensation, the contents of relevant regulations, the consent prepared and submitted by the applicant, and the contents of the written claim, the legislative purpose of Article 18(2) of the Act on the Democratization Compensation is to promptly terminate and implement it through the procedure for the decision of payment such as the compensation of the Committee and to ensure stability in the decision of payment such as compensation when the applicant gives the applicant consent to the decision of payment such as compensation, in full view of the effects of judicial reconciliation, such as the effect of res judicata, in particular, the effect of granting res judicata, and in particular, granting the applicant’s prompt termination and implementation through the procedure for the decision of payment such as compensation of the Committee, if the applicant has consented to the decision

(See Supreme Court Decisions 2012Da45603 Decided March 13, 2014; 2012Da204365 Decided January 22, 2015, etc.)

Meanwhile, Article 2 subparag. 2(d) of the Democratization Compensation Act provides that "a person who has been convicted of a person on the ground of his/her related party" as one of the persons involved. Article 9(1) provides that "the Committee may grant subsidies to assist his/her livelihood to any of the following persons and his/her bereaved family members." Article 12-2(1) of the Enforcement Decree of the Democratization Compensation Act provides that "a person detained for 30 days or longer on the ground of his/her democratization movement." The former part of Article 12-2(1) of the Enforcement Decree of the Democratization Compensation Act provides that "the person detained for 30 days or more from among persons eligible for living allowances under Article 9(1) of the Act shall be paid an amount calculated by multiplying the minimum cost of living in the pertinent period of detention, and the amount shall not exceed 50,000 won." According to the relevant provision, the Act on the Democratization Compensation does not distinguish the circumstances leading up to conviction of a person who was convicted on the ground of a democratization movement, and thus, the applicant is also subject to a judicial judgment of conviction or retrial.

C. Of the instant lawsuit, the part of the Plaintiff’s claim of consolation money and the heir’s heir’s claim of consolation money and lost damage are lawful

1) Facts of recognition

A) On October 17, 2001, Plaintiff A received a decision from the Committee to recognize a person related to democratization movements under Article 2 subparagraph 2 (d) of the Democratization Compensation Act as a person convicted of being a person related to democratization movements on the grounds of the Commission’s judgment. Plaintiff A was determined to pay living allowances of KRW 18,059,220 on August 29, 2005 and prepared and submitted a written consent to the Committee that he/she shall conclude a settlement contract with the Committee on September 5, 2005. Plaintiff A received living allowances on September 16, 2005.

B) On November 13, 2001, G was determined as a person related to democratization movements under Article 2 subparagraph 2 (d) of the Democratization Compensation Act by the Committee as a person convicted of being a person related to democratization movements on the grounds of his/her democratization movements. G was determined as a person related to democratization movements under Article 2 subparagraph 2 (d) of the Democratization Compensation Act. G was prepared and submitted by the Committee a written consent to the effect that it would receive living allowances of KRW 2005, 6,097,080 from the Committee, and that it would make a compromise contract with the Committee on July 13, 2005. G received living allowances on July 26, 2005.

[Reasons for Recognition] Each entry in the Evidence Nos. 1 to 3 (including paper numbers), the purport of the whole pleadings

2) Determination

In light of the above legal principles, Plaintiff A and G shall be deemed to have the same effect as a judicial compromise in relation to the case in which Plaintiff A and G violated Emergency Measure No. 9, by submitting a written consent and a written claim to the Commission for the determination of compensation pursuant to the Democratization Compensation Act and receiving living allowances from the Committee.

Ultimately, among the lawsuit of this case, the part on the claim for consolation money (excluding the part on the claim for consolation money inherited in the position of the heir), and the part on the premise that the claim for consolation money was inherited by the plaintiff B, C, D, E, and F, who is the inheritor of G, is illegal as there is no benefit in the protection of rights, and the defendant's defense prior to the merits of this case

3. Judgment on the merits

A. The plaintiffs' assertion

1) The former president, even though not in a state emergency situation, such as the exercise of an emergency measure, publicly announced the long-term power and issued an emergency measure No. 9 on May 13, 1975 to suppress the opposing power of the new constitution. In light of the content, the emergency measure is unconstitutional that seriously infringes on the fundamental rights of the people, such as the principle of no punishment without the law, warrant requirement, and freedom of expression. Therefore, the exercise of the emergency measure by the former president intentionally violates the Constitution while public officials perform their duties.

2) Since Emergency Decree No. 9 is a measure of unconstitutionality and invalidation, the act of judicial duties of a judge who has rendered a judgment of conviction by applying Article 9 of the Emergency Decree to the duties of an investigative agency that has filed a prosecution or by applying subparagraph 9 of the Emergency Decree shall be deemed unlawful. The issuance of an emergency measure that is null and void of the President, and a series of acts, such as the subsequent investigation and trial, constitute the Defendant’s tort.

3) Plaintiff A et al. under investigation while being placed in an isolated confinement with counsel and family members for a long time after blocking meeting and communication by them, and was seriously subject to suspicion, such as sacity and adviser, from investigators. Such act by the investigative agency is unlawful.

4) Ultimately, the Defendant is obligated to compensate Plaintiff H and I for consolation money for damages equivalent to the lost income accrued during the period of detention as shown in attached Form 2. [Attachment 2.]. The Defendant is obligated to compensate for consolation money for mental suffering suffered by Plaintiff A, H, I, and G’s family members (the Plaintiff’s claim for consolation money and the heir’s claim for consolation money for inheritance and for lost damage for the aforementioned reasons).

B. Determination

1) Whether the exercise of the presidential emergency power constitutes a tort by an intentional or negligent act by a public official under Article 2(1) of the State Compensation Act

A) Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980, 200; hereinafter “former Constitution”) which provides the basis for the issuance of Emergency Decree No. 9 is unconstitutional and invalid since it seriously limits the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom as well as the fundamental elements of democracy, which are fundamental elements of democracy, and the freedom of expression prescribed by the current Constitution (see Supreme Court en banc Order 201Hu689, Apr. 18, 2013). However, even if Emergency Decree No. 9 was declared unconstitutional and invalid after the court, the exercise of the right to promote the President’s exercise based on the new Constitution is highly political act with high level of political responsibility, and thus, the President does not have any legal obligation corresponding to each citizen’s right, and thus, constitutes a tort against the general public (see Supreme Court Decision 2016Da282845, Apr. 25, 2019).

B) Therefore, it is difficult to accept the Plaintiffs’ assertion that the act of issuing the Presidential Emergency Decree No. 9 on different premise itself constitutes a tort by a public official’s intentional or negligent act under Article 2(1) of the State Compensation Act in relation to the Plaintiffs.

2) Whether the act of investigating and punishing public officials under subparagraph 9 of the Emergency Measures constitutes a tort by a public official’s intentional or negligent act

A) Relevant legal principles

(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 that the statute was unconstitutional or invalid, even if an investigation was initiated based on the relevant statute 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.

In addition, Emergency Decree No. 9 does not meet the requirements stipulated in Article 53 of the U.S. Constitution, which is the basis for the issuance of the Emergency Decree, as well as the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom, which are fundamental elements of democracy and the current Constitution. As seen above, Emergency Decree No. 9 is deemed unconstitutional and invalid.

However, inasmuch as Article 53(4) of the 19-2 of the 19-2 Constitution of the Republic of Korea provides that "the emergency measures referred to in paragraphs (1) and (2) shall not be subject to judicial review," as long as the Emergency Measures No. 9 was an effective Act and subordinate statutes that have not been declared unconstitutional or invalid, it shall not be deemed a public official's intentional or negligent act. In addition, even if a judge's error in failing to comply with the provisions of the 19-2-2-1-2-2-1-2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-3-2-3-2-4-2-3-2-3-4-2-3-2-3-4-2-3-2-3-3-4-4-4-3-4-4-4-3-3-4-4-4-4-4-2003-3-3-4-4-4-4-7

(2) On the other hand, in a case where a State agency was indicted on the basis of evidence collected in the course of investigation by an illegal act, and a final judgment of conviction was rendered, but the case under the latter part of Article 325 of the Criminal Procedure Act was not proven in the retrial procedure and thus the judgment of innocence became final and conclusive, the State’s liability for damages caused by the reinstatement, etc.

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 against a violation of Emergency Decree No. 9, becomes final and conclusive on the ground that the crime committed by the State, which was committed in the course of the investigation, is unconstitutional or invalid, barring any other special circumstances, it cannot be deemed as a case where the judgment of innocence was rendered in the judgment subject to retrial. Thus, solely on the fact that the judgment of innocence became final and conclusive, it cannot be deemed immediately deemed as a State’s tort, and the State’s liability for damages is difficult to recognize. In this case, the State’s liability for damages should be determined by a separate review of whether there was a causal link between the act committed in the course of investigation and the conviction thereof, and accordingly, the State’s liability for damages was recognized as having been committed against the State’s act of conviction under the former part of Article 201 of the Criminal Procedure Act (see, e.g., Supreme Court Decision 2017Da25135).

B) Determination

(1) The facts charged by the Plaintiff A et al. were arrested without a warrant on the charge of violating Emergency Decree No. 9, and the conviction was finalized after being indicted and convicted after being detained. In addition, in full view of the overall purport of the pleadings in each of the evidence Nos. 8 through 11 (including the provisional number), the Plaintiff et al. was subject to harsh acts such as assault and water adviser during the investigation process, and the fact that the interview and communication between his family members was prevented is also acknowledged.

However, even if an investigative agency arrested and detained the Plaintiff A, etc. without a warrant under subparagraph 9 of the Emergency Measures Act, which was in force at the time, and prosecuted the investigation, or a judge declared a conviction by applying subparagraph 9 of the Emergency Measures Act, insofar as the Emergency Measure No. 9 was not declared unconstitutional or invalid at the time, it is difficult to deem that such circumstance alone constitutes an intentional or negligent tort by a public official

In addition, the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act against the Plaintiff et al. on the ground that the Emergency Measure No. 9, which is a law related to punishment applied to Plaintiff A et al. in the review procedure on the judgment subject to a retrial, becomes null and void, barring any special circumstance, it cannot be deemed that the judgment of retrial was rendered due to the illegal act of the State agency, which was conducted during the investigation process, and the re-adjudication by

Furthermore, even though the fact that the Plaintiff et al. was abused during the investigation process and obstructed meeting and communication with his family members is recognized, it is difficult to deem that there was a high probability proof as to the existence of a cause of innocence under the latter part of Article 325 of the Criminal Procedure Act without any cause of innocence under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9.

As a result, the Defendant’s public officials’ liability for damages arising from the illegal acts cannot be recognized regarding the reinstatement, etc. based on the judgment subject to review.

(2) As seen above, the judicial duties of the judge who sentenced the presidential emergency measures, the duties of the investigative agency against the plaintiff Gap, etc., and the judgment of conviction cannot be deemed to constitute a tort by the public official's intentional or negligent act. Accordingly, the plaintiffs' assertion that the issuance of emergency measures which are unconstitutional or invalid, and the series of investigations and trials pertaining thereto are unlawful is without merit.

3) Whether the State’s compensation liability is established for the blocking of harsh conduct and the visitation and communication right of family members in the course of investigation

A) According to Article 89 of the former Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980; hereinafter the same) which applies mutatis mutandis pursuant to Article 209 of the same Act at the time of the arrest of the Plaintiff A, etc., the suspect under detention may meet with others, receive documents and articles, and receive medical treatment within the scope of the law. However, according to each of the items of Articles 8 through 11 (including the serial number) and the overall purport of the pleadings, the fact that the Plaintiff et al. was not allowed to have interview with his family during the police investigation, and there is no counter-proof. The act of blocking meeting and communication by the investigators belonging to the Defendant constitutes a tort violating the provisions of the former Criminal Procedure Act.

B) According to the overall purport of Gap evidence Nos. 8 through 11 (including additional numbers) and the arguments, the plaintiff A was arrested without a warrant for a violation of Article 9 of the Emergency Measures Act and was abused from the investigation officers belonging to the Dong-dong Police Station in Gwangju-dong. The plaintiff H was arrested for a violation of Article 9 of the Emergency Measures Act, and was arrested for a violation of Article 9 of the Emergency Measures Act, and was arrested for an investigation at the underground room of the loss south of the Central Information Department, and was assaulted by the defendant's investigators. The plaintiff 1 was arrested for a violation of Article 9 of the Emergency Measures Act without a warrant and was arrested for a violation of Article 9 of the Emergency Measures Act and received violence from the defendant's investigators; G was arrested for a violation of Article 9 of the Emergency Measures Act without a warrant and received an investigation from the Central Information Office and received the investigation from the defendant's investigators. The act of the plaintiff H constitutes a tort belonging to the defendant.

C) Ultimately, the Defendant is liable to compensate the Plaintiffs for damages incurred by the tort, such as the above-mentioned (A) and (b) of the public officials belonging to the Defendant, unless there are special circumstances.

4) Judgment on the defendant's defense of extinctive prescription

A) The defendant defense that the damage claim of the plaintiffs expired five years after the expiration of the statute of limitations. Accordingly, the plaintiffs asserted that there was an objective disability that the plaintiffs could not exercise their right to claim damages of this case against the defendant until the new trial was rendered by the court which rendered the judgment of conviction, and that the defendant's defense for the expiration of the statute of limitations cannot be allowed as an abuse of rights.

B) The Plaintiffs’ damage claim is a right against the State for monetary payment, and its prescription expires if it is not exercised for five years from the date of tort pursuant to Article 96 of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050, Oct. 4, 2006).

The facts that Plaintiff A was detained on March 31, 1978 and was detained on July 17, 1979; that Plaintiff H was detained on September 9, 1977; that on December 31, 1979, the fact that Plaintiff H was detained on December 31, 1979; that on August 15, 1979, the fact that Plaintiff A was detained on August 15, 1979; that on August 25, 1978, G was detained on April 25, 1978, and that on August 15, 1979, the fact that the Plaintiffs was detained on August 25, 1978 that the damage claim against the Defendant was extinguished. As such, it is apparent in the record that the Plaintiffs’ lawsuit was filed on September 17, 2013, five years after the date of the release.

C) The obligor’s exercise of the right of defense based on the statute of limitations is subject to the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. As such, 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 principle of prohibition of abuse of rights, and thus, the obligor’s exercise of the right or interruption of prescription has become impossible or considerably difficult before the expiration of the statute of limitations, or the obligee’s act was committed to believe that such measures are unnecessary, or there was an objective obstacle to the obligee’s exercise of the right, or the obligor’s exercise of the right was not able to invoke the statute of limitations after the expiration of the statute of limitations, or there were special circumstances, such as the obligor’s exercise of the right to defense based on the same condition that the refusal of the obligor’s exercise of the right to defense is remarkably unfair or unfair, and thus, the obligor’s exercise of the right to defense against the Defendant’s unlawful act cannot be seen as an abuse of rights against the Plaintiff’s family members’s exercise of rights.

4. Conclusion

Therefore, the part of the plaintiff's claim of consolation money in the lawsuit of this case and the part of the plaintiff's claim of consolation money and lost profit in the plaintiff's claim of the plaintiff's B, C, D, E, and F is unlawful and dismissed. The plaintiff's claim except the plaintiff's plaintiff's A, C, D, E, E, and F and the remainder of the plaintiff's claims A, B, C, D, D, and F are all dismissed without any justifiable reasons. It is so decided as per Disposition.