2019cc8 Criminal Compensation

(2017 Inventory 4 Violation of National Defense Security Act)

OO (1930-1)

Jeju District Court Decision 2017 Inventory 4 Decided January 17, 2019

August 21, 2019

812,288,00 won and 1,275,000 won and 1,275,000 won and 812,28,000

Payment shall be made.

1. Facts of recognition;

The record reveals the following facts.

A. The claimant was indicted for violating Article 32(1) and Article 33(2) of the former National Defense Security Act (amended by Act No. 1004, Jul. 3, 1948; hereinafter the same shall apply) and was convicted of imprisonment with prison labor for 15 years at the High Military Court conference on July 3, 1949, and the above judgment became final and conclusive around that time.

B. The claimant was detained for 2,432 days from July 3, 1949 to February 28, 1956, which was the date of the above judgment.

C. The claimant filed a petition for review of the final and conclusive judgment with Jeju District Court 2017 Inventory 4 (hereinafter referred to as “new trial case”). This court accepted the petition and rendered a ruling dismissing a public prosecution against the claimant on January 17, 2019 following the pleading after the second trial decision was rendered on September 3, 2018. The judgment dismissing the public prosecution became final and conclusive on January 25, 2019.

D. The claimant was present at the trial date on five occasions in the case of reexamination, and the law firm Loma was appointed as a defense counsel.

2. Determination

(a) Compensation for detention;

1) Occurrence of a claim for detention compensation

According to the above facts, the claimant was not required to specify the facts charged against the claimant in the retrial case, and ② the judgment dismissing the prosecution was rendered on the ground that the conviction did not comply with the prosecution procedure prescribed in the former National Defense Security Act, but any evidence corresponding to the facts charged by the claimant on the record has not been submitted. Thus, if there was no reason to dismiss the prosecution, the claimant can claim compensation for detention because it falls under the time when there was a significant reason to be acquitted without the reason to dismiss the prosecution.

In addition, the claimant was detained for 2,432 days due to the above conviction. In this case, there is no special circumstance to refuse compensation under each subparagraph of Article 4 of the Criminal Compensation and Restoration of Honor Act (hereinafter referred to as the "Criminal Compensation Act"), and the claimant can claim compensation for the above detention against the State under Article 2 (1) of the Criminal Compensation Act.

2) Scope of compensation for detention

Article 5(1) of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the same Act provide that the minimum limit of compensation for detention is five times the amount of daily minimum wage under the Minimum Wage Act of the year in which the cause of the claim for compensation arises, and the upper limit is five times the amount of daily minimum wage under the Minimum Wage Act of 2019 (determination of innocence). Since the daily minimum wage amount under the Minimum Wage Act of 2019, which was caused by the cause of the claim for compensation of this case, is KRW 66,800, the lower limit of compensation is KRW 66,800 per day, and the upper limit is KRW 334,00 per day (=6,800 x 5

Considering all the circumstances stipulated in Article 5(2) of the Criminal Compensation Act, such as the type and period of detention recorded in the records of this case, the degree of loss incurred during the period of detention, mental suffering, occupation and living level of the pertinent state agency, and the existence of intent or negligence by the pertinent state agency, the amount of compensation for the claimant shall be set at KRW 334,00 per day, which is the maximum amount stipulated in the above Act, for all 2,432 days of detention. As such, the amount of compensation for the claimant’s detention shall be set at KRW 812,28,000 (=334,000 x 2,432).

(b) Cost compensation;

1) Occurrence of a claim for compensation

According to the above facts of recognition, the claimant has no reason falling under Article 194-2 (2) of the Criminal Procedure Act, and the claimant has the right to claim compensation for the expenses incurred in the re-sale of the above acquittal case to the State pursuant to Article 194-2 (1) of the

2) Scope of compensation

(A) daily allowances and travel expenses of the claimant;

The provisions concerning witnesses of the Criminal Procedure Costs Act shall apply mutatis mutandis to the amount of compensation according to travel expenses and daily allowances spent by a person who was a defendant to attend a preparatory hearing and a trial date (Article 194-4(1) of the Criminal Procedure Costs Act).

According to Articles 3(2) and 4(2) of the Criminal Procedure Costs Act, the amount of daily allowances and travel expenses for a witness shall be determined by the court within the scope prescribed by the Supreme Court Regulations. Accordingly, Articles 2 and 3 of the Rules on Criminal Procedure Costs, which are the Supreme Court Rules, shall be determined by the Supreme Court Justices' Council within the scope of annual budget, and the daily allowances of a witness shall be determined by the Supreme Court Justices' Council within the scope of annual budget, and the expenses of a witness shall be the amount corresponding to subparagraph 2

Accordingly, the daily allowances of the witness determined by the Supreme Court Justices' Council shall be 50,000 won per day in 2017, 2018, and 2019, respectively, and the travel expenses paid to the witness who has an ordinary address in Seopopopo City, which is the ordinary applicant's residence, are 6,000 won.

According to the records, the claimant is recognized to have attended five times on the date of the above retrial, and the compensation for the claimant is 280,000 won (per day 50,000 won + travel expenses 6,000 won) x 5 x 275,000 won which the claimant seeks within the scope of compensation amount possible pursuant to the relevant provisions.

B) Defense counsel fees

The provisions of the Criminal Procedure Costs Act concerning the remuneration of counsel shall apply mutatis mutandis to the public defender (Article 194-4 (1) of the Criminal Procedure Act).

According to Article 8(2) of the Criminal Procedure Costs Act and Article 6 of the Rules on Criminal Procedure Costs, etc., the remuneration of a public defender shall be paid by the Supreme Court Justices' Council within the scope of annual budget, based on the difficulty of the case, the contents of duties performed by a public defender, the time spent for the handling of the case, etc., and so forth, the relevant presiding judge may increase the remuneration within the scope of budget. The limit of the increase under Article 14(1) of the Rules on the Supreme Court's Public defender under Article 14(1) of the Rules on Criminal Procedure Costs is up to five times the remuneration determined by the Supreme Court Justices' Council in 2019, and the remuneration of the public defender for the criminal trial case at the first instance and other criminal case recommendation is KRW 4

According to the records, the claimant's appointment of the sea floor of the retrial case as a defense counsel is recognized. Considering the difficulty of the retrial case, the contents of the duties performed by the defense counsel, the time required for the handling of the case, etc., it is reasonable to determine the remuneration of the defense counsel of the retrial case as KRW 1,00,000.

C. Determination on damages for delay

The claimant also claims for compensation for confinement and cost at a rate of 5% per annum from the day following the date of the claim for compensation in the instant case until the day full payment is made. However, the right to claim compensation for a penalty is a public law right that forms specific contents under the Criminal Compensation Act and the Criminal Procedure Act, and the right to claim compensation for the State only when the claimant's claim for compensation becomes final and conclusive by exercising the right to claim compensation, i.e., the right to claim compensation for the State, and the due date comes after the claimant exercises the right to claim compensation finalized (see, e.g., Article 194-5 of the Criminal Procedure Act; Articles 21 and 21-2 of the Criminal Compensation Act; and Supreme Court Decision 2015Da23411, May 30, 2017). Therefore, the claim for compensation in this part is without merit.

3. Conclusion

Therefore, the State is obligated to pay 1,275,000 won (i.e., travel expenses, 275,000 won + attorney’s fees of 1,00,000 won) to the claimant as compensation for detention, and the State is obliged to pay 812,288,000 won and expenses (i.e., travel expenses). It is so decided as per Disposition.

August 21, 2019

(Presiding Judge)

Coordination Benefits

Kim Jin Kim

(i) directly and indirectly, in accordance with Article 32, any arms, ammunitions, forms, money and other material that may be used by the Board of Governors or members of the Board of Governors, or by intention, or

any person who conceals or protects the enemy or provides information to the enemy or to the enemy; or

capital punishment or other punishment.

2) Any person who has locked or acted as a espionage in any place, spawn, spawn, spawn, or spawn as a espionage under section 33.

A vehicle shall be tried at the High Military Court Council at any time, and the death penalty shall be imposed upon conviction.