2013 Gohap 543918 Damage, Claim

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

14.N

15,00

16. P;

Korea

March 26, 2015:

2015, 4.23

1. The plaintiff A's lawsuit shall be dismissed.

2. All of the plaintiffs' claims except the plaintiff A are dismissed. 3. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs 5% interest per annum from January 8, 1980 to the service date of a copy of the complaint of this case from January 8, 1980 to the service 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.

1. Basic facts

A. The part concerning the plaintiff A

(1) On September 13, 1976, Plaintiff A was detained on the charge of violating the Presidential Emergency Decree No. 9 for the National Security and the Protection of Public Order (hereinafter referred to as “Emergency Decree No. 9”), and was charged for the facts stated in Section 1 of the Attached Table No. 2. The Sungdong branch of the Seoul District Court (Seoul District Court 76No. 164) found the Defendant guilty of the facts charged on November 12, 1976 and sentenced Plaintiff A three years of imprisonment and suspension of qualification for the said facts charged. Accordingly, Plaintiff A appealed as Seoul High Court 77No2158, but the dismissal judgment was pronounced on February 3, 197, and the final appeal was dismissed on April 26, 197, and the said judgment became final and conclusive.

(2) The plaintiff A was discharged on August 15, 1978 from prison labor in accordance with the above final judgment and was released on August 15, 1978.

(3) After that, Plaintiff A filed a request for reexamination of the said final judgment with Seoul Eastern District Court 201 Inventory 2, and the said court rendered a decision of commencing a new trial as to the said judgment, and rendered a decision of Emergency Measures No. 9 on May 7, 2013, which was unconstitutional and invalid, pursuant to the former part of Article 325 of the Criminal Procedure Act, acquitted Plaintiff A of the whole facts charged on the ground that the said facts charged constitute a crime, and the said judgment became final and conclusive on May 14, 2013.

(4) Plaintiff Q is the mother of Plaintiff A, and Plaintiff C is his spouse, Plaintiff D, and E. B. The part on Plaintiff F

(1) On March 27, 1976, Plaintiff F was detained on suspicion of violating Emergency Decree No. 9, and was prosecuted as the facts charged as stated in Appendix No. 2 List No. 2. On June 18, 1976, the Seoul District Court Sungdong Branch (76Gohap60) convicted Plaintiff F of the above facts charged, and sentenced Plaintiff F for one year of imprisonment and one year of suspension of qualification. Accordingly, Plaintiff F appealed as Seoul High Court 761417, and the appellate court reversed the lower judgment on October 19, 1976, and sentenced Plaintiff F to two years of suspended sentence and one year of suspension of qualification, and the judgment became final and conclusive around that time. (2) After which Plaintiff F filed a request for a new trial as to the above final judgment, the lower court rendered a new trial order as to the above final judgment, and rendered a final and conclusive judgment as to Plaintiff F’s crime under the former part of the Criminal Procedure Act, and thus, became null and void on August 29, 2013.

(4) Plaintiff F’s mother R and father S died on August 14, 1983 and September 22, 1983, respectively, and Plaintiff G was punished by Plaintiff F.

C. The part concerning the plaintiff H

(1) On April 21, 197, Plaintiff H was arrested and detained without a warrant on charges of violating Emergency Decree No. 9 on April 21, 197, and was prosecuted as the facts charged as stated in Appendix No. 2 List No. 3. On September 6, 1977, Cheongju District Court (Seoul High Court 77No1546, but sentenced Plaintiff H to two years of imprisonment and two years of suspension of qualification. Accordingly, Plaintiff H appealed appealed as Seoul High Court 77No1546, but was dismissed on December 16, 197, and the final appeal (Supreme Court 78Do32, Feb. 28, 1978) became final and conclusive (hereinafter “instant judgment subject to a retrial subject to a retrial”).

(2) Plaintiff H served in accordance with the above final judgment and released the Plaintiff H on January 7, 1980 upon the expiration of the term of punishment.

(3) After that, Plaintiff H filed a petition for a new trial with the Cheongju District Court 2013 Inventory1 on the said final judgment. The said court rendered a decision of commencing a new trial on the said judgment, and rendered a decision of Emergency Decree No. 9 on July 26, 2013 on the ground that the said facts charged constitute a case where the said facts charged constitute a crime, and thus, the judgment became final and conclusive on August 3, 2013, pursuant to the former part of Article 325 of the Criminal Procedure Act.

(4) The mother of Plaintiff H died on February 16, 1988, and Plaintiff H’s wife, Plaintiff J, K, L, M, N,O, P are their children.

[Ground of recognition] Facts without dispute, Gap 1 through 11, 20, 21, 22 of evidence (including each number, hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. Emergency Decree 9 is declared to suppress the so-called national resistance against the so-called physical system, and domestic and foreign political situation at the time of the issuance of the Emergency Measure does not meet the requirements for exercising the emergency measure under Article 53 of the 1999 Constitution, and is unconstitutional and invalid in violation of the warrant principle, the excessive prohibition principle, and the proportionality principle. Thus, the U. President’s emergency measure 9 itself constitutes an unlawful act as a duty act for which the violation of Article 2 of the State Compensation Act is attributable.

B. Although public officials and judges in charge of investigation agencies belonging to the defendant are able to know that emergency measures are unconstitutional and invalid for the above reasons, they were formally convicted of imprisonment with prison labor and suspension of qualifications for the above plaintiffs by conducting investigations and trials with respect to plaintiffs A, F, and H, and further, they could not lead a normal social life by continuously conducting inspections after the release of the above plaintiffs. The above plaintiffs' investigation and conviction judgment, and inspection acts with respect to the above plaintiffs are illegal acts that clearly violate the standards requiring compliance in the course of performing their duties. Accordingly, the defendant must compensate for damages, such as mental losses suffered by the above plaintiffs and their family members, and loss of lost profit.

3. Determination on this safety defense

A. The defendant's main defense

The defendant asserts to the effect that the plaintiff A's lawsuit is unlawful, since the plaintiff A received compensation under the Act on the Restoration of Honor and Compensation for Persons Related to V (hereinafter referred to as the "W Compensation Act"), and the plaintiff's consent to the decision to pay compensation, etc. under Article 18 (2) of the same Act to the effect that all damage related to V related to the decision to pay compensation, etc. has been constituted a judicial compromise.

B. Determination

In light of the legislative purport of the W Compensation Act, Articles 2 subparag. 1 and 2(d), 10(1), 14(1), and 18(2), Article 20 subparag. 3 [Attachment Form 10] of the Enforcement Decree of the Act on the Restoration of Honor and Compensation to V-Related Persons, the consent prepared and submitted by the applicant, and the purport of Article 18(2) of the W Compensation Act, in addition to the contents of the claim, the legislative purpose of Article 18(2) of the W Compensation Act is to make a decision on the payment of the principal of the living area of compensation and medical allowances (hereinafter referred to as “compensation, etc.”), in particular, it shall be recognized that the applicant has received 70 U.S.C. 215 of the W Compensation Act, including the fact that the applicant has received 70 U.S.C. 216 of the W Compensation Act with respect to the case, referring to the fact that the applicant has received 70 U.S. 20 U.S.C. 21615 of the written consent.

Therefore, it is reasonable to deem that the damage suffered by the Plaintiff A in relation to the violation of Emergency Measure No. 9 has the same effect as the judicial compromise. Therefore, Plaintiff A’s lawsuit is unlawful as there is no benefit in the protection of rights (However, there is no decision or compensation received by Plaintiff Q, Plaintiff C, Plaintiff D, and E, their spouse, who is Plaintiff A’s mother, did not receive any decision or receive any compensation, and the validity of the judicial compromise arising from Plaintiff A’s consent to the decision on the payment of living compensation by the X Committee solely on the ground that the above Plaintiffs are in a relationship of relationship with Plaintiff A does not have any ground to deem that the effect of the settlement arising from

4. Determination on the plaintiffs except the plaintiff A (hereinafter referred to as "the plaintiffs")' claims

A. Whether the exercise of the presidential emergency power constitutes a tort

First, it is considered that the exercise of the emergency measure by the President constitutes a tort by intention or negligence of a public official under Article 2 (1) of the State Compensation Act.

Emergency Decree No. 9 lacks the requirements of Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 10, 27, 1980; hereinafter referred to as the “former Constitution”), which served as the basis for the issuance of the Emergency Decree, and is unconstitutional and invalid as it 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, which are fundamental elements of democracy and the current Constitution (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 201). However, even if Emergency Decree No. 9 declared ex post unconstitutional and invalid, the exercise of the emergency power by the President based on the new Constitution is a highly political act with high level of political responsibility for the exercise of the national emergency power, and thus, it does not constitute a tort against the general public (see, e.g., Supreme Court Decision 2005Da284825, Apr. 20, 2012).

Therefore, it is difficult to accept the Plaintiffs’ assertion that the presidential Emergency Measure No. 9 itself is an intentional or negligent tort by public officials under Article 2(1) of the State Compensation Act in relation to the Plaintiffs on different premise.

B. Whether the investigation and trial constitute a tort

1) Relevant legal principles

In a case where a penal law becomes retroactively null and void due to a decision of unconstitutionality by the Constitutional Court or a court is declared unconstitutional or null and void, even if an investigation is initiated based on the relevant law before the law is declared unconstitutional and a public prosecution is declared guilty, such circumstance alone does not lead to the State’s liability for damages that constitutes 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 to the lack of the requirements stipulated in Article 53 of the New Constitution, which is the basis of the issuance of an Emergency Decree, as well as the lack of the essential elements of democracy, and as long as the Emergency Decree No. 9 has not been declared unconstitutional and invalid, it shall be deemed unconstitutional and invalid as it 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. However, if a defendant or heir was found guilty of a violation of Emergency Decree No. 9, which was in force at the time, files an investigation by arresting and detained a suspect without a warrant under subparagraph 9 of the Emergency Decree and instituting a public prosecution, or by applying subparagraph 9 of the Emergency Decree, Article 53(4) of the previous Constitution provides that "the emergency measures under paragraphs (1) and (2) shall not be subject to judicial review." Thus, it is difficult to view that such act constitutes a tort by a public official's intentional or negligent act committed in the course of a new trial.

Meanwhile, in a case where a public prosecution was instituted based on evidence collected by a State agency in the course of investigation and a final and conclusive judgment was rendered, but the case of the defendant under the latter part of Article 325 of the Criminal Procedure Act was "when there is no proof of criminal facts" and thus the judgment of innocence became final and conclusive, the State’s liability for damages caused by the breach of duty may be recognized. However, in a case where the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act, which is the Act on the Punishment of the defendant applied in the retrial procedure for the conviction of a violation of subparagraph 9 of the Emergency Decree, becomes final and conclusive on the ground that the violation of the former part of Article 325 of the Criminal Procedure Act was unconstitutional and invalid, it cannot be deemed that the judgment of innocence was rendered in the judgment of conviction due to an unlawful act of the State. Thus, it cannot be deemed that the State’s liability for damages was recognized as unconstitutional by the second half of the judgment of conviction, and the reason for the final and conclusive judgment of innocence was determined separately among the State agencies.

2) Determination

Based on the above legal principles, the public officials belonging to the defendant committed an illegal act in the course of investigating the plaintiffs A, F, and H and criminal punishment by applying emergency measures 9, and accordingly, whether there was a ground for innocence under the latter part of Article 325 of the Criminal Procedure Act, and whether there was an illegal inspection against the plaintiffs after the release of the above plaintiffs.

In full view of the facts and the overall purport of the arguments as seen earlier, the reasons for the decision to commence a retrial on each of the instant judgments are unconstitutional and invalid, and it is not proved that public officials belonging to the Defendant engaged in harsh acts such as adviser, violence, etc., or committed an offense related to their duties during the investigation process against the Plaintiff, F, and H, and that each of the written evidence Nos. 21 through No. 24 was conducted by the Plaintiff, F, and H from the public officials belonging to the Defendant during the investigation process, or caused emotional distress by making it difficult for the Plaintiffs to live at normal home and workplace after their release, and there is no other evidence to acknowledge it otherwise. ③ Even if government agencies, such as the Plaintiffs’ assertion, were conducted, in light of the instant judgment and the contents of new judgment, it is difficult to conclude that there was no other evidence to acknowledge that there was a causal link between the Plaintiff and the Defendant No. 2, including the Plaintiff’s act of the government agencies, the Plaintiff F, and the Defendant No. 9 of the Criminal Procedure Act.

Therefore, the above argument of the plaintiffs is without merit, and eventually, it is difficult to accept the plaintiffs' compensation for damages equivalent to the consolation money and lost profit.

5. Conclusion

Therefore, the plaintiff A's lawsuit is dismissed as it is unlawful, and the remaining plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, appointed judge;

Judges Kim Jae-han

Judges Park Gin-uri