(영문) 서울고등법원 2017.6.9.선고 2015나2023268 판결

The defendant shall pay to the plaintiffs 5% interest per annum from October 31, 1978 to the date on which a copy of the complaint of this case was served, and 20% interest per annum from the following day to the date on which the copy of the complaint of this case was served.

2. Purport of appeal

The part against the plaintiffs falling under the order of payment under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiffs the money stated in the "total amount of appeal" column of "amount of appeal after expansion of "amount of appeal by plaintiff" and 5% per annum from October 31, 1978 to the day on which a copy of the complaint of this case was served, and 15% per annum from the following day to the day of full payment.

Reasons

1. Quotation of the first instance judgment

The reasoning of this Court concerning this case is as follows, with the exception of the dismissal of part of the reasoning of the first instance judgment and the deletion of the whole provision of Paragraph (5). Accordingly, the reasoning of the first instance judgment is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

[Attachment]

The reasoning of the judgment of the court of first instance is 7 to 5, "Presidential Emergency Decree No. 9 (hereinafter "Emergency Decree No. 9") for the national security and the protection of public order" (hereinafter "Emergency Decree No. 9") 9 and 3, "Plaintiff BF" - Of the grounds of the judgment of the court of first instance, the entire part of paragraph (3) (No. 10, No. 12-13, No. 11 of the judgment of first instance) among the grounds of the judgment of the court of first instance, "Plaintiff AB" (No. 10, No. 12-13, No. 11 of the judgment of first instance).

A. Summary of the defendant's assertion

If the network BE that was investigated or tried due to a violation of Emergency Measure 9, and the plaintiffs I, Q, AB, AG, AG, AO, and AZ consented to a decision to pay compensation, etc. pursuant to Article 18(2) of the former Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement (Amended by Act No. 13289, May 18, 2015; hereinafter referred to as the "former Act on the Compensation for Democratization Movement"), a judicial compromise under the Civil Procedure Act is established between the defendant and the defendant for the damage incurred in relation to the democratization movement. Accordingly, the lawsuit in this case is unlawful.

B. Relevant legal principles

(1) Articles 2, 3, and 10 of the former Democratization Compensation Act provide that a person related to a democratization movement or his/her bereaved family member who has been convicted on the grounds of a democratization movement may file an application for payment of compensation, medical allowances, and living allowances (hereinafter referred to as "compensation compensation, etc.") for damage related to a democratization movement in relation to the democratization movement, and Article 18(2) of the former Democratization Compensation Act provides that "where the applicant has consented to the determination of payment of compensation, etc. under this Act, a judicial compromise under the Civil Procedure Act shall be deemed established for the damage related to a democratization movement."

① However, in the consent and written claim submitted by the applicant to the Compensation Deliberation Committee, “The applicant shall conclude a compromise contract on the case, and shall not claim it again in any way in connection with the case.” ② The legislative purpose of Article 18(2) of the former Democratization Compensation Act is to promptly terminate and implement it through the procedures for the decision of the Compensation Deliberation Committee to pay compensation, etc. and to ensure stability in the decision to pay compensation, etc. before the lawsuit is brought by granting res judicata effect, the same effect as judicial compromise in cases where the applicant consents to the decision to pay compensation, etc., and in particular, it does not explicitly decide that part of the content applied by the Compensation Deliberation Committee does not fall under the requirements of a person related to democratization movement as prescribed by the former Democratization Compensation Act. Thus, if the applicant has consented to the decision of the Compensation Deliberation Committee to pay compensation, etc. pursuant to Article 18(2) of the former Democratization Movement Compensation Act, the same effect as judicial compromise under the Civil Procedure Act shall take effect as to all the damage suffered in relation to democratization movement, including consolation money, etc. (see, 2012Da4603, March 13, 2014).

(2) Meanwhile, the former Act on the Compensation for Democratization does not distinguish the circumstances leading up to conviction in the payment of living allowances to persons who were convicted on the ground of democratization movement and who were reinstated for a certain period. As such, it is interpreted that not only a case where a person was convicted of a lawful criminal procedure but also a case where a person committed a tort by an investigative agency, such as illegal arrest, detention, adviser, operation, etc., was convicted, and returned to the court after being convicted, such act is also subject to the payment of living allowances. Therefore, the damage suffered by a person related to a democratization movement who led to a confession of criminal facts and return to the court after being convicted by an investigative agency after being illegally arrested and detained by the investigative agency in relation to the democratization movement constitutes damage related to the democratization movement. Accordingly, when an applicant for compensation, etc. has consented to the decision of the Compensation Deliberation Committee on Compensation for Democratization Movement, it shall be deemed that the same effect as judicial reconciliation pursuant to Article 18(2) of the Gu Residents' Compensation Act takes effect later, and it shall not have the same effect as settlement in the part thereof within the extent identical to judicial review procedure (see Supreme Court en banc Decision 20125.

(3) However, Article 3 of the former Democratization Compensation Act defines the bereaved family as the heir of property of a person related to a democratization movement and prescribes that the bereaved family shares the right to receive compensation and living allowances according to the share of the property under the Civil Act. Article 7 of the same Act stipulates that compensation shall be calculated based on the monthly salary, etc. of a person related to a democratization movement and does not separately consider the circumstances of the bereaved family. In full view of the provisions related to the bereaved family under the former Democratization Compensation Act, the scope of the same effect as a judicial compromise pursuant to Article 18(2) of the former Democratization Compensation Act is limited to the damage inflicted on the person related to a democratization movement, and it cannot be deemed that the extent of damage inflicted on the person related to the democratization movement, such as consolation money, etc. unique to the bereaved family members, has the same effect as a judicial compromise (see Supreme Court Decision 2013Da214598, 214604, Dec. 24, 2014). Such legal doctrine also applies to the damage inflicted on the person related to the democratization movement.

C. As to the legitimacy of the lawsuit filed by the plaintiff C, I, Q, and AB

(1) recognised facts

The following facts can be acknowledged in accordance with the records, or according to the results of fact inquiry and reply to the Compensation Deliberation Committee of the court of first instance, and the purport of the whole pleadings.

(A) The Compensation Deliberation Committee, with respect to the violation of the Emergency Measure No. 9 above, carries out the network BE

The plaintiff I, Q and AB judged that they constitute "persons convicted on the grounds of democratization movements" under Article 2 subparagraph 2 (d) of the former Act on the Compensation for Democratization Movement and decided to recognize them as persons related to democratization movements.

(B) After that, Plaintiff C, Plaintiff I, Q, and AB, who are children of the network BE, applied for the payment of compensation, etc. to the Compensation Deliberation Committee, but consented to the decision of payment of the living allowances of the Compensation Deliberation Committee and received the living allowances as follows.

A person shall be appointed.

(C) Plaintiff C claimed against the Defendant the amount of damages equivalent to KRW 328,614,973 of the network BE inherited from the deceased’s father (=28,614,973 won of lost income of the network BE + KRW 300,000,000 of consolation money + ② the mother’s damages amounting to KRW 100,000 of consolation money of the network BH inherited from the network BH, and ③ the Plaintiff’s damages amounting to KRW 100,00,000 of consolation money.

(D) The Plaintiff 1 sought against the Defendant the amount of damages equivalent to KRW 36,363,636 of the deceased BI’s consolation money (i.e., KRW 200,000,000 of the deceased BI’s consolation money of KRW 2/11,00 of the deceased BI’s portion of inheritance of KRW 200,00,000,000) and (ii) the amount of damages equivalent to KRW 310,00,000 of the Plaintiff I’s 310,000 (the lost income of KRW 10,00,000 + the consolation money of KRW 30,00,00).

(E) Plaintiff Q sought damages amounting to KRW 31,250,000, out of the deceased BJ’s consolation money (i.e., KRW 250,00,000, X Plaintiff Q Q’s share of inheritance of KRW 250,000,00, and (ii) Plaintiff Q Q’s claim for damages amounting to KRW 707,268,845, (i.e., lost income of KRW 7,268,845, + KRW 700,000).

(F) Plaintiff AB claimed against the Defendant the amount of damages equivalent to KRW 36,363,636 of the deceased BF’s consolation money (i.e., KRW 200,000,000, X Plaintiff AB’s share of inheritance 2/11 of the deceased BF’s consolation money) and (ii) KRW 410,00,000,000 of the Plaintiff AB himself/herself (i.e., KRW 10,00,000 + KRW 40,000 + KRW 40,000).

(2) Determination

(A) In light of the legal principles as seen earlier, among the lawsuits filed by Plaintiffs C, I, Q, and AB, the part on the claim for damages of the network BE inherited from the network BE, a person related to the democratization movement of Plaintiff C, and the part on the claim for damages (on a daily basis and consolation money) inherent in Plaintiff I, Q, and AB, a person related to the democratization movement, are related to the damage that has already occurred the same effect as a judicial compromise under Article 18(2) of the former Democratization Compensation Act by consenting to the decision on the payment of living allowances of the council of the compensation council. Accordingly, this part of the lawsuit is unlawful since the interests in the protection of rights are not recognized.

(B) However, the remainder of the lawsuits brought by Plaintiffs C, I, Q, and AB is not related to the person related to democratization movements himself/herself, but related to mental sufferings caused by the violation of Emergency Decree No. 9 as seen earlier by the wife or father or father of the persons related to democratization movements. Accordingly, this part of the damages does not have the same effect as a judicial compromise.

D. As to the legitimacy of the lawsuit filed by the remaining plaintiffs

(1) In the case of Plaintiff AG and AZ, there is no evidence to acknowledge that they were determined by the Compensation Deliberation Committee to recognize persons related to democratization movements and to pay compensation, etc. in relation to the violation of Emergency Decree No. 9 above.

(2) Next, according to the fact-finding reply to the Compensation Review Board of the first instance court on June 18, 2003, the fact that Plaintiff AO received KRW 15,756,750 of the compensation under the former Democratization Compensation Act from the Compensation Review Board on June 18, 2007 upon receipt of a decision to recognize a person related to democratization movements and received KRW 15,756,750 of the compensation under the former Democratization Compensation Act on June 26, 2007 is recognized. However, this is limited to Plaintiff AO’s activities in the year 1986, which was not related to the above Emergency Decree No. 9, since it was based on the said case, it cannot be deemed that the damage caused by Plaintiff AO’s violation of Emergency Decree No. 9 as seen earlier had the same effect as

(3) Lastly, in the case of the rest of the plaintiffs except for plaintiffs C, I, Q, AB, AG, AO, and AZ, these are relatives of net BE, plaintiffs I, Q, AB, AG, AO, and AZ, seeking compensation for damages for their own mental suffering resulting from the violation of the above Emergency Measure 9 against the defendant. Therefore, there is no room for a question as to whether the same effect as the judicial compromise under Article 18(2) of the former Democratization Compensation Act has occurred.

E. Sub-committee

The Defendant’s prior defense on the merits is justified only for the part on the claim for damages for the network BE inherited from Plaintiff C’s net BE among the instant lawsuits, and for the part on the claim for damages unique to Plaintiff I, Q and AB, and the remainder on the merits are without merit.

2. Conclusion

Among the lawsuits in this case, the part concerning the claim for damages of the network BE inherited from the network BE of Plaintiff C and the part concerning the claim for damages of Plaintiff 1, Q and AB, which are unlawful, and the remaining claims of the Plaintiffs are dismissed. The part concerning the claim for damages of the network BH inherited from Plaintiff C’s network BH among the judgment of the first instance, the part concerning the claim for damages of Plaintiff C’s own damages, ② the part concerning the claim for damages of the network BH inherited from Plaintiff C, ③ the part concerning the claim for damages of the network B I inherited from Plaintiff I’s network BI, ④ the part concerning the claim for damages of the network BJ inherited from Plaintiff Q Q Q’s network BJ, and the part concerning the claim for damages of the network BF inherited from Plaintiff AB, are inappropriate. However, in this case where only the Plaintiffs appealed, the court of first instance cannot change this part differently from this court’s conclusion to Plaintiff C, I, Q and AB, and thus, the Plaintiffs’ appeal cannot be dismissed. Accordingly, all of the appeals by the Plaintiffs are dismissed.