(영문) 서울고등법원 2015.11.19.선고 2015나2035360 판결

The judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiffs the amount of money stated in the "amount claimed after expansion" among the "amount table of claim" (attached Form 2), 5% per annum from January 9, 1979 to the service date of the complaint, and 20% per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

The court's explanation on this part is the same as the statement of "1. Facts recognized" of the judgment of the court of first instance, and this part is cited by the main text of Article 420 of the Civil Procedure Act.

2. Determination on the defense prior to the merits

The court's explanation on this part is the same as the statement in the last part of the "decision on the defense prior to the merits" of the judgment of the court of first instance (10 pages), except for the addition of the following matters to the last part of the "Decision on the defense prior to the merits" (9 pages). Thus, it shall be cited in accordance with the main sentence of

In addition, “Plaintiff A, B, C, D, F, G, H, K, K, L, and M infringe upon the right to trial under Article 27(1) of the Constitution and the right to state compensation under Article 29(2) of the Constitution, and Article 37 of the Constitution.

Since it violates the principle of excessive prohibition as it infringes on the essential contents of the fundamental rights under paragraph (2), it also violates the principle of clarity, it argues that the part of the plaintiffs' claim does not have the effect of judicial compromise under Article 18 (2) of the Demodization Compensation Act.

① The right to receive living allowances under the Democratization Compensation Act, unlike the State’s right to claim compensation, is recognized as a right recognized only under the above Act, and specific matters including the procedure for relief, belongs to the legislative body’s broad legislative formation area. The Act guarantees the honor restoration of persons related to democratization movements and the independence of the Compensation Deliberation Committee (hereinafter “Compensation Deliberation Committee”); ③ the fairness and reliability of deliberation procedures are sufficiently maintained in examining the payment of compensation; ④ the above Plaintiffs appears to have consented to the decision to pay living allowances and received living allowances in a situation where they can freely choose whether to consent to the decision to pay living allowances; ④ The above Plaintiffs’ consent to the decision to pay living allowances and the written consent to the decision to pay living allowances submitted by the above Plaintiffs are stated in the purport that they will not claim compensation again for damages related to democratization movements; 5) The Act on Democratization Compensation was enacted to resolve the issue regarding the right to receive compensation or compensation, and thus, it is difficult to view that the Plaintiffs’ right to claim compensation in a lump sum violates the above provision of Article 18(2) of the Democratization Compensation Act, Article 101 of the Enforcement Decree of the Act.

3. Judgment on the merits

A. The plaintiffs' assertion

1) Emergency Decree No. 9 is null and void due to significant and apparent unconstitutionality, and the President’s issuance of Emergency Decree No. 9, which is null and void of the Constitution, constitutes a series of acts such as investigations and trials pertaining to duties that intentionally violate the Act and subordinate statutes, and constitutes a series of acts such as an investigation and a trial.

2) As such, the act of investigating the Plaintiff, etc. by arresting and punishing the Plaintiff, etc. without a warrant under subparagraph 9 of the Emergency Decree, which is unconstitutional or invalid, or the judicial act of a judge who has rendered a judgment of conviction by applying subparagraph 9 of the Emergency Decree, is also unlawful.

3) The investigative officers, etc. belonging to the defendant arrested and detained the plaintiff et al. without a warrant without notifying the plaintiff et al. of the grounds for arrest or the right to appoint a defense counsel, and the defendant et al. detained the plaintiff et al. for more than 30 days prior to the prosecution. In the investigation process, the plaintiff et al. committed cruel acts such as tata, etc. and prevented meetings with the plaintiff et al., and committed illegal acts such as conducting illegal inspections continuously after the release of the plaintiff et al. (4) Accordingly, since the plaintiffs suffered enormous mental distress due to the defendant's illegal acts, the defendant is liable to compensate the plaintiff for damages equivalent to the "amount claimed after expansion" stated in the "amount table of claim".

B. Determination

1) Whether the presidential emergency action No. 9 constitutes a tort

A) Relevant legal principles

Emergency Decree No. 9 does not only lack the requirements per se stipulated in Article 53 of the U.S. Constitution that served as the basis for the issuance thereof, but also infringes on 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 stipulated in the current Constitution and the current Constitution (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 2013).

However, even if 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 political nature, and the President, in principle, is not a 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 of power by the President constitutes a tort under the civil law in relation to an individual citizen (see Supreme Court Decision 2012Da48824, Mar. 26, 2015).

B) Determination on the instant case

In light of the above legal principles, since the presidential emergency measure No. 9 issued itself does not constitute a tort by a public official’s intentional or negligent act under Article 2(1) of the State Compensation Act, it does not accept this part of the plaintiffs’ assertion on a different premise.

2) Whether an investigation and trial under subparagraph 9 of the Emergency Measures Act constitute a tort

A) Relevant legal principles

In a case where a penal law has retroactively lost its effect due to a decision of unconstitutionality by the Constitutional Court, or a court has declared unconstitutional or null and void, even if an investigation was initiated based on the relevant law before the said law was declared unconstitutional and a public prosecution was declared guilty, such circumstance 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.

Although the Emergency Measure No. 9 is unconstitutional and invalid as seen earlier, the act of judicial duties of a judge who has conducted an investigation by arresting and detaining a suspect without a warrant pursuant to Emergency Measure No. 9, which was in force at the time, and applied the Emergency Measure No. 9, and who has brought an action by an investigation agency, or by applying the Emergency Measure No. 9, which was in force at the time, provided that Article 53(4) of the New Constitution provides that "the emergency Measure No. 1 and No. 2 shall be subject to judicial review," and that the Emergency Measure No. 9 is not declared unconstitutional and invalid, it is difficult to deem that it constitutes a tort by a public official's intentional or negligent act. Provided, That if a judgment of innocence was rendered in the retrial proceeding, the defendant or his/her heir may receive due compensation by claiming a criminal compensation pursuant to "the Act on Criminal Compensation and Restoration of Honor" under certain requirements.

On the other hand, if a public prosecution was filed based on the evidence collected by a state agency in the course of investigation and a final judgment of conviction was made, but the case of the defendant under the latter part of Article 325 of the Criminal Procedure Act in the retrial procedure falls under "when there is no proof of criminal facts" and thus the judgment of innocence was finalized, the State's liability

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 of the Emergency Decree No. 9), which was applied to the defendant in the retrial procedure against the judgment of conviction of violation of Emergency Decree No. 9, becomes final and conclusive on the grounds that the defendant was unconstitutional or null and void, barring any other special circumstances, it cannot be deemed a case where the judgment of innocence was rendered in the judgment subject to retrial due to the illegal act by the State agency, which was in the process of the investigation, barring any other special circumstances. Thus, solely on the fact that the judgment of innocence became final and conclusive, it cannot be deemed immediately deemed that the restoration from conviction caused by the conviction does not constitute a State’s illegal act. As such, the State’s liability for damages is difficult to be recognized. In this case, the State should separately examine whether the offense was committed in the course of investigation and whether there was causation between the illegal act and the conviction, and then determine whether to recognize the State’s liability for damages based on the conviction.

The State’s liability for damages can be recognized against the conviction (see Supreme Court Decision 2013Da217962, Oct. 27, 2014).

B) Determination on the instant case

(1) In light of the above legal principles, a public official’s act of performing an investigation by arresting and detaining the Plaintiff, etc. without a warrant pursuant to Emergency Measure No. 9, which was enforced at the time, or a judge’s judicial act of conviction by applying Emergency Measure No. 9, which was conducted pursuant to the Emergency Measure No. 9, which was conducted pursuant to the Emergency Measure No. 9, which was

Therefore, prior Plaintiffs’ assertion on a different premise is without merit.

(2) Furthermore, in light of the following circumstances acknowledged as above and the facts acknowledged as above, Gap evidence Nos. 12 through 16, 18 through 27, 37, 40 through 42, 47, and 49 (including the number of branch numbers; hereinafter the same shall apply) together with the overall purport of oral argument, it is difficult to view that there was a high probability of proof as to the existence of the causes of innocence under the latter part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Decree No. 9, or the causes of acquittal on the ground of the revocation of Emergency Decree No. 9, etc.

(A) The reason for the decision to commence a new trial (Seoul High Court Decision 79No786) on T is that the Emergency Measure No. 9 is unconstitutional or invalid. It seems that the public officials involved in the investigation were proved that the public officials engaged in the investigation were unconstitutional or invalid, and that the public officials engaged in the investigation committed a cruel act or committed a crime concerning their duties during the investigation process of T, and that the Emergency Measure No. 9 was sentenced to acquittal under the former part of Article 325 of the Criminal Procedure Act on the ground that it is unconstitutional or invalid.

(B) With respect to Plaintiff A, Q, B, R, C, D, T, and network E, and each defense counsel was appointed and present at the first instance court and the appellate court. In addition, in light of the following evidence and the grounds for appeal by the Plaintiff, etc. cited as evidence of conviction in the conviction against the Plaintiff, etc., the Plaintiff, etc. asserted the above constitutionality, invalidation or invalidation of the Emergency Decree No. 9 that prohibits any criticism against the Constitution during the investigation and trial proceedings, and the act of manufacturing and distributing printed materials by the Plaintiff, etc. does not appear to have denied itself.

[Evidence of the crime of oil] Plaintiff A, Q: Part of the Defendants’ partial statement, the prosecutor’s and the police’s interrogation record on the Defendants and DS’s interrogation record on the suspect interrogation record, part of the Defendants’ and DS preparation record, Pox (10, 26, and 10, 27 October 24, 1978), name statement (10, 26, and 10, 27) and Plaintiff B and R sent to active journals: part of the Defendants’ written statement, the prosecutor’s written statement on the suspect interrogation record on the Defendants, part of the prosecutor’s written statement on the suspect interrogation record on the Defendants and DT, Defendant R and DS, part of the written statements in Plast-type (17 August 24, 1978, and 17 November 197, 197).

E. E: The Defendants’ partial statement, prosecutor and police officer’s interrogation record, part of the Defendant’s interrogation record, P/S’s statement, P/L (20,24 October 17, 1978) and 1 (a) of the Defendant’s interrogation record, part of the Defendant’s oral statement, prosecutor’s and police officer’s interrogation record, Plaintiff C/S’s transcript of the Defendant’s oral statement (10,178, 17: 17: Defendant’s written statement, prosecutor’s and police officer’s interrogation record, Defendant’s oral statement, prosecution record, and prosecutor’s interrogation record, and prosecutor’s interrogation record, and prosecutor’s interrogation record, etc. are not unlawful. 2 of the facts charged. 3 of the prosecution record of the case, Defendant’s oral statement, prosecutor’s and police officer’s 73Da734 were written on the prosecution record, and thus, Defendant’s unlawful or invalid.

3. The sentence of the first instance court is too unreasonable. ① Plaintiff C, D, and S. Emergency Decree No. 1.9 should be deemed invalid or invalidated because it violates the Constitution, and 2. The court below erred by misapprehending or distorted the contents of the Defendants’ motion, thereby making an interpretation and application of Emergency Decree No. 9. 3. The prosecution against Defendant D is contrary to the principle of equity, and the sentence of the first instance court on April 1 is too unreasonable.

(C) According to the Emergency Decree No. 9, which was enforced at the time, the act of producing and distributing the representations containing the contents that slander the Constitution and the Emergency Decree No. 9 was prohibited by openly denying, opposing, slandering, or distorting the facts, or distort the facts, or producing and distributing the expressions containing the said contents, and thus, the act of producing and distributing the expressions that slander the Constitution and the Emergency Decree constitutes a violation of the Emergency Decree No. 9.

(D) With respect to Plaintiff A, B, C, D and network E, and I, it is not sufficient to acknowledge that only the descriptions of evidence Nos. 19, 20, 22, 23, 25, and 26 were forced to make a false confession or committing cruel acts such as assault, etc. by an investigator at the time of investigation by the investigator, and there is no other evidence to acknowledge it.

Meanwhile, according to the evidence Nos. 24-1, 27-1, 40, and 41 of the evidence Nos. 24-1, 27-1, and 41, it is difficult to conclude that the statements made by the prosecutor and court of the Plaintiff et al. were made in a state of voluntariness due to the suspicion of suspicion in light of the following circumstances: (a) although Plaintiff Qu, R, and net T, and S were investigated by the police, they were subject to harsh acts, such as assault, intimidation, and diving; and (b) in light of the details of the appointment and arguments of the attorney as seen earlier, grounds for appeal, and evidence relations, etc., of the Plaintiff et al.

(E) In addition, it is difficult to readily conclude that the remaining evidence, except the statement of the investigative agency, which was used as evidence of guilt in a conviction against the plaintiff et al., is inadmissible. Since Article 9 (8) of the Emergency Decree, which was enforced at the time, provides that "a person who violates an emergency measure, may seize or search without the warrant of a judge," seizure of evidence against the plaintiff et al. cannot be deemed unlawful, and there is no evidence to prove that the procedure of seizure

(F) The decision on criminal compensation for Plaintiffs A, Q, B, R, C, D, and network S, I, and E is merely based on the fact that the Emergency Measure No. 9, which is the applicable law to the facts charged, was unconstitutional and thus, had a significant reason for being acquitted under the former part of Article 325 of the Criminal Procedure Act if there was no reason to render a judgment of acquittal or dismissal of public prosecution, and did not determine the grounds for innocence under the latter part of Article 325 of the Criminal Procedure Act.

3) Whether an individual tort in the course of investigation is established and the statute of limitations expires.

A) Whether tort was established

As seen earlier, Articles 202, 203, and 205 of the former Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980; hereinafter the same) which were enforced at the time stipulate that the period of detention by a judicial police officer may be extended by up to 10 days, and that the period of detention by a prosecutor may be extended by up to 10 days with the permission of a judge of the district court within 10 days, or only one time within 30 days prior to prosecution, and that the remaining period of detention by the plaintiff Q, Q, R, and net T, and S violated the provisions of Articles 202, 203, and 205 of the Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980; hereinafter the same shall apply) is not sufficient to acknowledge the existence of a criminal suspect prior to prosecution, and thus, the remaining period of detention by the plaintiff Q 1 and T130 days prior to prosecution or one time.

Therefore, the defendant is liable to compensate the above plaintiff et al. for damages caused by the above illegal acts unless there are special circumstances.

B) Determination on the Defendant’s defense of extinctive prescription

(1) The defendant asserts that even if there was such tort against the plaintiff et al., the damage claim arising therefrom has expired by prescription.

However, the plaintiffs' damage claim due to the above illegal act is a right against the state with the purpose of monetary payment, and if it is not exercised for five years from the date of the illegal act under Article 96 of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050 of Oct. 4, 2006), it shall be terminated by prescription. The plaintiffs et al. were arrested at the end of October or around January 1, 1978 and released on November 1 through December 12, 1979, respectively. The plaintiffs' damage claim due to the above illegal act was extinguished by prescription, since it is obvious that the plaintiff et al. raised on September 17, 2013 after five years from the date of their release.

(2) As to this, the Plaintiffs asserted that the Defendant’s assertion of the completion of extinctive prescription constitutes an abuse of rights against the principle of good faith.

The exercise of a debtor's right of defense based on the statute of limitations is also subject to the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, if there are special circumstances, such as: (a) an obligor has made it impossible or considerably difficult for the obligee to exercise his right or the interruption of prescription before the expiration of the statute of limitations; (b) an obligee has acted to believe such measures are unnecessary; or (c) an obligee has objectively obstructed the obligee from exercising his right; or (d) an obligor has made the same attitude that the obligor would not invoke the statute of limitations after the expiration of the statute of limitations; or (b) the obligor has made the obligee trusted it; or (c) other creditors have received the repayment of the obligation under the same conditions as the need to protect the obligee; and (d) the obligor may not claim the completion of the statute of limitations as an abuse of rights against the principle of good faith. In addition, an assessment that the defense of the statute of limitations does not allow the obligee to exercise its right objectively on the ground that there is an obstacle to the obligee from an abuse of rights.

In light of the above legal principles, the following circumstances acknowledged by the evidence as seen earlier, and ① the above individual act alleged by the Plaintiffs constitutes an unlawful act in itself regardless of the invalidation of Emergency Measure No. 9, regardless of whether it is unconstitutional, and thus, the Plaintiffs could file a claim for damages due to a harsh act by an investigation agency without waiting the Supreme Court or the Constitutional Court’s decision as to the unconstitutionality of Emergency Measure No. 9, and the light that such tort can be compensated for damages only through a retrial procedure as to the judgment subject to a retrial

In light of the above, there is no evidence to find a proximate causal relationship between the tort and the judgment of not guilty on the ground of not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the fact that it is difficult to deem that there is a reasonable causal relationship between the tort and the judgment of not guilty. ③ there is no evidence to find that the Plaintiffs filed an application to ascertain the truth with respect to the tort committed by the public officials belonging to the Defendant, or ex officio, and ④ the Plaintiffs filed the instant lawsuit after the lapse of more than 30 years after the termination of illegal act such as the Plaintiff’s illegal confinement, etc. ④ The Plaintiffs filed the instant lawsuit after the lapse of more than 30 years after the expiration of the statute of limitations due to changes in Korea’s social and political situation, etc., it is difficult to deem that there was an objective obstacle for the Plaintiffs to exercise their right to claim damages against the Defendant, or that there is a trust in the Defendant’s failure to claim for the extinguishment of rights due to the expiration of the statute of limitations.

C) Therefore, we cannot accept the Plaintiffs’ assertion seeking compensation for damages arising from this part of tort.

4) Whether an unlawful inspection, detention, etc. was committed after release

A) Relevant legal principles

Article 10 of the Constitution provides that "All citizens shall be dignity and value as human beings and have the right to pursue happiness. The State shall have the duty to confirm and guarantee the fundamental human rights of an individual." Article 17 of the Constitution provides that "All citizens shall not be infringed on the secrecy and freedom of privacy." This provision is interpreted as not only passive rights where an individual's private activity is infringed upon by others or privacy is not disclosed without permission, but also active rights that can control one's own information autonomously in today's highly informatization society today. Accordingly, if public officials belonging to the defendant continuously collect and manage information on activities or privacy related to an individual's assembly and association or privacy for the purpose of monitoring and grasping the trend of peace for citizens beyond the scope of duty stipulated in statutes, it constitutes a tort against the fundamental rights of the plaintiffs guaranteed by the Constitution (see Supreme Court Decision 96Da27974, Jul. 24, 1998).

B) Determination on the instant case

Even after the release of the Plaintiff, etc., it is difficult to examine whether the Plaintiff et al. suffered damage, such as surveillance, employment restrictions, multiple times, and re-detention, from the investigative agency after the release of the Plaintiff et al., and to determine which degree the Plaintiff et al. was subject to illegal surveillance from the investigative agency in detail, and whether the Plaintiff et al. was unfairly restricted employment after the release of the Plaintiff et al., and it is insufficient to recognize that public officials belonging to the Defendant were engaged in continuous activities to constitute a tort, and there is no other evidence to acknowledge that there was no other evidence to acknowledge that there was such violation (as seen earlier, even if the aforementioned illegal act was committed, the Plaintiffs were able to claim state compensation against the Defendant from the date on which the above individual illegal act was terminated, and the lawsuit of this case was filed on September 17, 2013, which is obvious that five years have passed thereafter, the Plaintiffs’ right to claim damages due to the above illegal act expired, and as seen earlier, the Defendant’s right to

C) Therefore, the plaintiffs' assertion to seek damages due to this part of tort cannot be accepted.

4. Conclusion

Therefore, among the lawsuits of this case, the part concerning claims by plaintiffs A for lost income and consolation money, the part concerning claims by plaintiffs F, G, H's lost income and consolation money inherited from E, and the part concerning claims by plaintiffs J, K, L, and M's lost income and consolation money inherited from I are unlawful. Thus, all claims by plaintiffs excluding the above plaintiffs and claims by plaintiffs B, C, D, F, G, H, H, H, K, L, and M except for the above plaintiffs and all remaining claims by plaintiffs 2, C, D, F, H, H, K, K, and M are dismissed. The judgment of the court of first instance is legitimate as it is so decided, and all appeals by the plaintiffs are dismissed as they are without merit.