Plaintiff (Attorney Lee In-young, Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm, Attorney Kim Jae-chul, Counsel for defendant-appellant)

Ansan-si (Law Firm Pyeongtaek-si, Attorneys Gangnam-do et al., Counsel for defendant-appellant)

November 15, 2013

Seoul Northern District Court Decision 2012Gadan18295 Decided May 3, 2013

1. Of the judgment of the court of first instance, the part against the defendant ordering the plaintiff to pay in excess of 2,614,641 won and 5% per annum from February 18, 2009 to December 6, 2013 and 20% per annum from the next day to the date of complete payment, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed, respectively.

3. Of the total costs of litigation between the Plaintiff and the Defendant, the portion arising between the Plaintiff and the Defendant shall be 10 minutes, and the remainder shall be borne by the Plaintiff, the Defendant, and 10 minutes of the cost of participation in the lawsuit, and the remainder shall be borne by the Plaintiff and the Intervenor joining the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 25 million won with 5% interest per annum from February 18, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 14,13,914 won with 5% interest per annum from February 18, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

Defendant: The part against Defendant in the judgment of the first instance court shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

1. Basic facts

A. The plaintiff's entry background and status of one source

1) The Plaintiff, who left North Korea on May 15, 2004, was living in China, and was living in China. Around October 2008, the Plaintiff is North Korean defectors who entered the Republic of Korea on January 15, 2009.

2) Based on Article 10(1) of the Act on the Protection and Settlement Support of Residents escaping from North Korea, the Minister of Unification establishes and operates an office to support the settlement of residents escaping from North Korea (hereinafter referred to as “one center”). North Korean defectors who entered the Republic of Korea, after undergoing a joint examination at the Central Joint Examination Center comprised of related agencies, such as the National Intelligence Service, and then are determined as a person eligible for protection pursuant to the Act on the Protection and Settlement Support of Residents, the North Korean Refugees shall be admitted to one center and transferred to the place of residence after undergoing social adaptation education, etc. for about 12 weeks. One of the president is the confirmation, medical examination, and other measures necessary for settlement support while a person eligible for protection is being protected at one source.

B. Reasons for the non-voluntary measure of hospitalization against the plaintiff

1) The Plaintiff was confined to a foreigner internment house in Thailand where the case of assault was committed, and was detained in an inferior environment at the foreigner internment camp, and later entered the Republic of Korea on January 15, 2009, more late than those who left North Korea at the same time.

2) On February 3, 2009, the Plaintiff was investigated at the Central Joint Examination Center of Thailand, and the Korean Embassy residing in Thailand did not take adequate protective measures, and was treated with a mental disorder in nearby ○○ Hospital by showing unstable and interestful mental state, such as expressing strong complaints. At the time, the Plaintiff expressed that “the medical specialist of ○○ Hospital has been treated with a mental disorder for more than three years, and it is necessary for the Plaintiff to provide a tending medication because the symptoms, such as uneasiness, uneasiness, body, and not for appraisal adjustment, are serious.”

3) On February 17, 2009, the Plaintiff was admitted to one of the 125 students. From the first date of admission, the Plaintiff had been admitted to the 124th student, which was originally admitted to the 124th unit, and the Plaintiff was in a very unstable psychological situation, such as making it difficult to promptly present at one source, demanding to do so, and strongly expressing that he would not receive social adaptation education.

4) On February 17, 2009, Non-party 1, a public official in charge of one source, had Non-party 2, a counselor within one won, provide the Plaintiff with the psychological counseling. At the time, Non-party 2, as to the Plaintiff’s symptoms, shows the symptoms of the Plaintiff, such as the influence of care, memory, damage of memory, accident disorder, etc. along with the symptoms (loudic eudic eudic eudic eudch), and there is a very high possibility that there is a visual disorder. At present, there is a possibility that there is a mental disorder accompanied by a paradic son, but it is necessary to carefully exclude the mental disorder, and information about the patient’s personal ability, past history, and family history is necessary. Since there is no possibility of action due to symptoms in the future, it is necessary for the Plaintiff to carefully observe and observe the examination and treatment of the Plaintiff and there is no need to consider the results of hospitalization.

5) On February 18, 2009, the following day, the Plaintiff showed a situation where it was difficult to receive education, such as continuing to display anger, without properly locked at night. Accordingly, Nonparty 1 requested treatment to Nonparty 3, who is a mental and medical doctor within one won, and on the same day, Nonparty 3 reported to the president, one of the following opinions: “The Plaintiff’s behavior control is known, is likely to cause harm or harm, and is likely to cause harm to the Plaintiff, and need to be hospitalized for continuous observation and treatment.”

6) On February 18, 2009, the president: (a) had Nonparty 3 and Nonparty 1 receive medical treatment from the Seoul Special Metropolitan City White Cancer Hospital (hereinafter “White Cancer Hospital”); and (b) Nonparty 4 diagnosed the Plaintiff as having a mental disorder with polar disorder and recommended hospitalized treatment.

7) On the same day, the president immediately requested the hospitalization of the Plaintiff at a White Hospital, and submitted a written consent to hospitalization to the Plaintiff as a legal guardian pursuant to Article 24 of the Mental Health Act and Article 14(1) of the Enforcement Rule of the same Act. The president of White Cancer Hospital was discharged on May 6, 2009, when treating the Plaintiff at a closed ward (hereinafter “instant hospitalization”). The Plaintiff was discharged from the hospital on May 6, 2009 and was discharged from the hospital on the same day.

(c) Relevant provisions of the Mental Health Act;

Article 21 (Person Responsible for Protection)

(1) A person responsible for supporting a mentally ill person or a guardian under the Civil Act shall be a person responsible for protection of a mentally ill person: Provided, That a person falling under any of the following subparagraphs shall not be

(2) The order of the duty of protection among the legal guardians under paragraph (1) shall be the order of the legal guardians and the order of the legal guardians, and where there are two or more legal guardians, the provisions of Article 976 of the Civil Act shall apply.

(3) Where there is no legal guardian under paragraph (1) or the legal guardian is unable to perform his/her duties due to unavoidable reasons, the head of a Si/Gun/Gu having jurisdiction over the domicile of the relevant mentally ill person (where he/she has no address or is unable to identify it, the present location)

Article 24 (Hospitalization by Person Responsible for Protection)

(1) The head of a mental medical institution, etc. may allow hospitalization, etc. of the relevant mentally ill person only where the two legal guardians (the consent of one legal guardian, if the legal guardian is only one) consent, and a psychiatrist deems that hospitalization, etc. is necessary, and shall obtain a written consent of hospitalization, etc. prescribed by Ordinance of the Ministry of Health and Welfare from the legal guardian and a document verifying that the person is the legal guardian when hospitalized.

Article 25 (Hospitalization by Head of Si/Gun/Gu) (1) A psychiatrist or mental health specialist who discovers a person suspected of undermining himself/herself or others due to a mental illness, may apply for the diagnosis and protection of the person concerned to the head of Si/Gun/Gu.

(2) Upon receipt of an application under paragraph (1), the head of a Si/Gun/Gu shall immediately request a psychiatrist to diagnose the person suspected as the relevant mentally ill person. (3) Where deemed necessary to conduct accurate diagnosis of the symptoms of a person suspected as a mentally ill person under paragraph (2) due to the risk of harm to himself/herself or other persons, the head of a Si/Gun/Gu may require the relevant person to be hospitalized at a mental medical institution or general hospital established or operated by the State or local government for a fixed period not exceeding two weeks.

(5) Omitted.

(6) Where there exists an opinion of at least two psychiatrists on the agreement of at least two psychiatrists that continuous hospitalization of the relevant mentally ill person is necessary as a result of the diagnosis under paragraph (3), the head of a Si/Gun/Gu may request the relevant mentally ill person to hospitalized treatment for the mental medical institution established or operated by the State or a local government: Provided, That where there is no mental medical institution established or operated by the State or a local government in its jurisdiction, he/she may

Article 26 (Emergency Hospitalization) (1) Any person who finds a person presumed to have a psychopathic personality and has a high risk to harm himself or other persons, may request the hospitalization of the person concerned to a mental medical institution with the consent of a doctor and a police officer, when the situation is very urgent and the hospitalization as provided for in Articles 23 through 25 cannot be conducted. (2) When requesting the hospitalization as provided for in paragraph (1), the consented police officer or the members of a rescue unit as provided for in Article 35 of the Framework Act on Fire Services shall escort the person concerned to the mental medical institution.

[Reasons for Recognition] Facts without dispute, Gap's entries in Gap's Evidence Nos. 1, 3, 4, 5, 12, 15, 21, 23, 24, 25, 29, 31, Eul's Evidence Nos. 1 through 8, 18, 21, and the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

1) Whether a public official is subject to performance of his duties

The facts revealed in the above 1. 1. The following facts are revealed: (i) 1. The facilities established by the Minister of Unification for the protection and settlement support of North Korean defectors, which are one of the public officials belonging to the Ministry of Unification, and which requested the medical treatment of the plaintiff and received the medical treatment for the White Cancer Hospital; and (ii) the hospitalization in this case was performed as part of his duties; (iii) the president, etc. requested the medical treatment of the plaintiff to the White Hospital; and (iv) the person subject to the judicial contract should be deemed to be the president and the president; and (iii) Article 24 of the Mental Health Act, which is the basis of the hospitalization in this case, is based on the premise of hospitalization requested by the legal guardian, and even if the psychiatrist considers it necessary to be hospitalized by the relevant mentally ill person, the director of the mental medical institution can not enforce the hospitalization independently without the consent of the legal guardian; and (v) the hospitalization in this case is a person who is the legal guardian of the plaintiff under the Mental Health Act and forced hospitalization as a public official of the plaintiff.

2) Whether illegality is recognized

A) Article 21 of the Mental Health Act provides that a person who is responsible for protection of a mentally ill person shall be a person responsible for support or guardian under the Civil Act; where there is no such person responsible for support or a person responsible for protection is unable to perform his/her duty due to unavoidable reasons; where there is no address of the mentally ill person in question or his/her whereabouts is unknown, the head of a Si/Gun/Gu having jurisdiction over the present location shall be the person responsible for protection. The above provision clearly stipulates that the scope of the person responsible for protection who has the authority to consent to compulsory hospitalization of the mentally ill person is restricted to list the scope of the person responsible for protection; and one president, etc. shall not be deemed to include the “a compulsory disposition that infringes on the physical freedom against the will of the person eligible for protection,

Therefore, even if the president, etc., who is not a legal guardian under the Mental Health Act, satisfies the requirements for emergency hospitalization, etc. under the Mental Health Act, apart from being hospitalized, the act of requesting the hospitalization of the Plaintiff against the Plaintiff’s will and allowing a lelapsic hospital to hospitalization against the Plaintiff by himself/herself as a legal guardian is an act of violating the procedure under the Mental Health Act.

B) As to this, the Defendant is obligated to take necessary measures, such as research, investigation, instruction, and consultation, to promote the treatment and rehabilitation of mentally ill persons and the rehabilitation of mentally ill persons (Article 4(1) of the Mental Health Act). In an urgent situation where, at the time of the instant hospitalization, the Plaintiff was aware of his behavior control at the time of the instant hospitalization, and the consent was refused to consent, the head of one president, who is a State agency that provides protection and settlement support for North Korean defectors, consented to hospitalization of the Plaintiff for the purpose of the Plaintiff’s medical treatment and the protection and safety of other students within one won, which is a legitimate act or an act that inevitably causes damage to other persons in order to avoid imminent danger, and thus, is not unlawful or not responsible for it.

On the other hand, a legitimate act based on the Act and subordinate statutes is justified, but even if it is an act based on the provision of the Act and subordinate statutes, it shall not be deemed unlawful if it is deemed that there is no social validity. It cannot be deemed that the president's consent to hospitalization of the plaintiff as a legal guardian is a "medical treatment for a mentally ill person" of the State pursuant to Article 4 of the Mental Health Act, and it cannot be deemed that there is social validity to the consent to hospitalization of the plaintiff in this case without violating the Mental Health Act as seen above, and therefore, it cannot be deemed that it is a justifiable act. In addition, in order for a harmful act to be dismissed as an emergency evacuation, it is an act to avoid the present imminent danger, to protect one's own or a third party's interests, and the requirements must be met. It is not necessary in this context, except for damages to other persons, and it cannot be seen that there is no significant imbalance between the interests of the plaintiff and the damage caused by the act of evacuation and the emergency hospitalization of the plaintiff in this case.

3) Whether to recognize intention or negligence

A) In general, if a public official takes a wrong administrative disposition due to a lack of knowledge or necessary knowledge of the relevant laws and regulations, he/she shall not be deemed to be a public official, not a legal expert. However, even though the interpretation of the laws and regulations itself is not clear, and there is a number of opinions as to the interpretation of the laws and regulations. However, in cases where it is impossible to raise any doubt due to the lack of significance, such as precedents, theories, precedents, etc., the relevant public official should be carefully and with the opinion of one of them, and thus, the erroneous interpretation should be returned to the Supreme Court after the interpretation of the Supreme Court is made according to one of them. Thus, even if the process is illegal and results in the unfair enforcement of the laws and regulations, it is difficult to expect that the average public official in good faith will be more than the method of such processing, and therefore, it cannot be acknowledged even in such a case (see Supreme Court Decision 95Da32747, Oct. 13, 195, etc.).

B) In the instant case, comprehensively taking account of the health class, Eul evidence Nos. 11, 16, and 26, and the purport of Nonparty 5’s testimony and the entire argument, the president has official authority to take necessary measures, such as health examination of North Korean defectors who were protected at one source. In the instant case, where a student who was admitted to one source was hospitalized in an outpatient hospital even before the instant hospitalization, he/she prepared a written agreement of hospitalization (Evidence No. 11). The fact that, at the time of the instant hospitalization, the family relation register for the Plaintiff was not established and resident registration was not granted but the person responsible for supporting the Plaintiff, his/her domicile, and his/her location was unclear, and the management guidelines for a mentally ill person to be protected at one source have been enacted on November 9, 2010 after the instant hospitalization.

However, in light of the facts acknowledged in the preceding 1. Article 40 of the Mental Health Act, each statement of the Mental Health Act No. 12 and each testimony of the non-party 6 and the non-party 7, and the overall purport of oral proceedings, the Act on the Protection and Support of Residents escaping from North Korea only provides for matters concerning the prompt adaptation and settlement of residents escaping from North Korea. Thus, it cannot be the basic principle of the Constitution that an administrative agency is unable to take compulsory measures against their own will, and the Act guarantees the dignity and value of all mentally ill persons as well as that of voluntary hospitalization for the mentally ill persons who need hospital treatment at all times, and thus, it should be recommended that the legal procedures stipulated in the Mental Health Act should be strictly followed, even if the non-party 6 was unable to protect the residents from North Korea by taking into account the fact that the non-party 2 had breached his/her duty to protect himself/herself at the time of entrance and treatment (Article 2(1) and (5) of the Mental Health Act).

C) Meanwhile, the Defendant asserted to the effect that, at the time of the instant hospitalization, the Plaintiff sought consent to the Plaintiff’s hospitalization to the Masung City Mayor, the legal guardian of the Matern Hospital, but the Masung City was forced to refuse such consent and the president was forced to consent to the hospitalization. Therefore, the Defendant did not err in performing

According to the evidence No. 19 (the result of the inquiry into the head of the court of first instance) of this case, the head of the Madam mental hospital at the time of the hospitalization of this case shows the following reasons to the effect that "the head of the Madam mental hospital at the time of the hospitalization of this case requested the head of the Maddong-si and the head of the Maddong-si to consent to the hospitalization of the Maddong-si market orally by posting a telephone to the Maddong-si support and the head of the Maddong-si, but the head of the Maddong-si market did not obtain resident registration numbers and temporarily reside in one source, and refused to consent to hospitalization."

However, in light of the fact that the testimony of Nonparty 6 and Nonparty 7 and the fact-finding on the safe market of the court of first instance were revealed to be known by the fact-finding, namely, there was no precedent refusing the consent of hospitalization of a mental hospital for one of the persons subject to protection, and in particular, there was no request for consent of hospitalization for the plaintiff, and that the safe market had already consented to the procedure of hospitalization of the North Korean refugee who was protected at one of June 8, 2006, it is difficult to readily conclude that the safe market refused the request of consent of the director of the Masan Hospital at the time solely based on the statement of evidence No. 19 and the testimony of Nonparty 5 of the witness of the party, and even if not, in light of the overall circumstances of the above examination, the president has a duty to protect the North Korean refugee from infringing on the rights of the person subject to protection. However, considering the fact-finding situation, the president does not have any reasonable ground for the defendant's assertion that he knewly consented to hospitalization of himself as the person subject to protection under the Mental Health Act.

4) Sub-determination

The reason why the president, etc., who is a public official, hospitalized the Plaintiff against the Plaintiff’s will constitutes an illegal act, and thus, constitutes an occupational act. Since the performance of his duties is recognized as a negligence of violating the duty of care to avoid infringement of the Plaintiff’s physical freedom, etc., which is not permitted by law, and thus, the Defendant is liable to compensate the Plaintiff for damages caused by the Plaintiff’s unlawful performance of duties by the president, etc. pursuant to Article 2(1) of

(b) Scope of damages;

(i) lost earnings;

According to Gap evidence 3 and Eul evidence 18, the plaintiff was born on January 23, 1965 and was admitted to one of the students 125 won on February 17, 2009, and was scheduled to move into his residence after being admitted to one of them under social adaptation education, etc. until April 23, 2009. Thus, it is reasonable to view that the plaintiff could have earned income from the common part of the city at the place of residence from April 24, 2009 to May 6, 2009 without the hospitalization of this case. Thus, the defendant is liable to compensate the plaintiff for the actual income of the above period (614,641 won (=6,622 won x 13 x 13 x 22 working days).

Meanwhile, the Plaintiff sought damages equivalent to the lost income even during the period from February 18, 2009 to April 22, 2009. However, even if the Plaintiff was not hospitalized in the White Hospital, it is recognized as having been in a special position to receive social adaptation education, etc. at one source with other students from February 18, 2009 to April 23, 2009. Therefore, the Plaintiff could not obtain income during the said period, barring any special circumstance. This part of the Plaintiff’s assertion is without merit.

2) Consolation money

Since it is obvious in light of the empirical rule that the Plaintiff violated the freedom of the body due to hospitalization against his will for a considerable period of time, and that the Plaintiff suffered serious mental distress, the Defendant is obligated to pay the Plaintiff’s mental distress in money. Considering the following circumstances: (a) the Plaintiff’s circumstance and duration of hospitalization; (b) the necessity and process of treatment; (c) the Plaintiff’s symptoms and treatment; (d) the Plaintiff’s special status as North Korean defectors; (e) the degree of illegality and negligence in performing duties of the president, etc.; and (e) the Plaintiff’s age and gender, it is reasonable

C. Sub-decision

The defendant is obligated to pay to the plaintiff damages for delay calculated by the ratio of 2,614,641 won (2,641 won in lost income + consolation money 2,00,000 won) and 20% per annum under the Civil Act from February 18, 2009, which is the date of the ruling of the court of the first instance that it is reasonable for the defendant to dispute as to the existence or scope of the obligation to perform, as well as the amount of damages for delay calculated by the ratio of 5% per annum under the Civil Act until December 6, 2013, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

3. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the part against the defendant who ordered payment in excess of the above recognition amount among the judgment of the court of first instance which partially different conclusions is unfair, it shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. The plaintiff's appeal and the defendant's remaining appeal shall be dismissed as they are without merit. It is so decided as

Judges Choi Jong-su (Presiding Judge)

1) The Act on the Protection and Settlement Support of Residents escaping from North Korea provides that the heads of diplomatic missions abroad, etc. in receipt of an application for protection from North Korea shall notify the Minister of Unification and the head of the National Intelligence Service through the head of the central administrative agency to which they belong of the fact (Article 7(2)); the head of the National Intelligence Service in receipt of the above notification shall, without delay, notify the Minister of Unification of the result thereof after taking temporary protection or other necessary measures (Article 7(3)); the Minister of Unification, upon receipt of the notification under Article 7(3), shall determine whether to provide protection following deliberation by the Council (Article 8(1)); the Minister of Unification shall establish and operate settlement support facilities for protection and settlement support (Article 10(1)); the head of the agency establishing and operating settlement support facilities shall provide protection at settlement support facilities until the person eligible for protection moves into his/her place of residence (Article 11(1)); and the head of the agency that establishes and operates settlement support facilities may confirm his/her identity and motive, conduct health examinations, and take other measures necessary for settlement support.