2013 Gohap 544539 Damage, Claim

It is as shown in the attached list of plaintiffs.

Korea

May 7, 2015

June 9, 2015

1. Of the instant lawsuit, the part concerning the Plaintiff’s claim for lost income and consolation money due to Plaintiff F, Plaintiff G, and Plaintiff D’s lost income, the part concerning the Plaintiff’s claim for lost income and consolation money inherited from Plaintiff F, Plaintiff G, and Plaintiff H’s claim, and the part concerning the Plaintiff’s claim for lost income and consolation money inherited from Plaintiff J, Plaintiff K, K, Plaintiff L, and Plaintiff M, respectively.

2. Each claim and each claim of plaintiffs B, C, D, plaintiff F, plaintiff G, plaintiff H, plaintiff J, plaintiff K, plaintiff K, plaintiff L, plaintiff L, and plaintiff M, with the exception of the plaintiffs listed in paragraph 1, are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs the amount of money stated in the "amount of claim after expansion" among the "amount of claim" table, 5% per annum from January 9, 1979 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the plaintiffs

(1) N journals belonging to N were exposed to the government of the Republic of Korea using the central information department, the culture bulletin department, etc., to control news reports of the media and to control journalists who do not comply with such reports, and announced a declaration of criticism and continued to be deaf. Accordingly, the government pressured N’s management through the blocking of advertisement order, and eventually dismissed 49 reporters on seven occasions from March 1975 to May 21, 197 and imposed an inorganic suspension order against 84 persons.

(2) On March 18, 1975, N officers organized a P Committee (hereinafter referred to as the “P”) and carried out activities for the freedom of the press in compliance with the governmental control. Plaintiffs Qu, A, B, R, C, D, S and network E, network T, network T, network T, network I (hereinafter referred to as the “Plaintiffs, etc.”) are those who were employed as N reporters and producer and were released from such activities as P’s chairperson, members, general affairs, etc.

B. Grounds for arrest, investigation, and prosecution of the plaintiff et al.

(1) In the fourth anniversary of the 4th anniversary of the Declaration of October 24, 1978, P prepared a printed article, such as “UI” and “V,” which arranged cases that have not been reported to the previous media, and distributed it to the participants.

(2) The police detained Plaintiff Qu, A, B, and T, E, and I on the ground that the above inducement was in violation of the Presidential Emergency Decree for the protection of national safety and public order (hereinafter “Emergency Decree No. 9”). On November 20, 1978, the police served Plaintiff Qu, B, and E, and I on the ground that it was a violation of Emergency Decree. On November 20, 1978, the police detained Plaintiff R on the ground that it was a violation of Emergency Decree. On January 1, 1979, Plaintiff C, D, and S were detained.

(3) The Prosecutor indicted the Plaintiff et al. of the facts charged that the content that slanders the Constitution and Emergency Measures was published and distributed to the Plaintiff et al., thereby violating Emergency Measure 9;

On November 24, 1978, the seven persons detained first among the plaintiffs et al. were divided into four separate cases, and T on November 24, 1978; on November 29, 1978, plaintiffs A, Q II; E, I on December 4, 1978; and plaintiffs B, and R on December 5, 1978; and prosecuted plaintiffs C, D, and S later detained on February 22, 1979.

(4) The date of arrest, the date of issuing warrant, the date of prosecution, the date of release, the period of detention, etc. for the plaintiff et al. are as follows.

A person shall be appointed.

A person shall be appointed.

C. Progress of trial against the plaintiff et al.

(1) The first trial against the plaintiff et al. was sentenced to a judgment of conviction on the whole facts charged through several trials, and the appellate court appealed, but the plaintiff et al. appealed, while maintaining the conviction, the appellate court sentenced the plaintiff et al. to a judgment of partially mitigated sentence while maintaining the conviction. On October 30, 1979, the judgment of dismissal of the appeal was handed down on October 30, 1979, and the decision of dismissal of the appeal was rendered on April 25, 1980 on the ground of the death of the defendant. The remaining defendants were released on December 8, 1979 by Emergency Measure No. 9, which is a penal provision, and were acquitted by a judgment of acquittal pursuant to Article 326 subparagraph 4 of the Criminal Procedure Act on the ground that the punishment was abolished due to the repeal

(2) The following are arranged in detail of the judgment with respect to the Plaintiff, etc.

A person shall be appointed.

A person shall be appointed.

(3) The Seoul High Court (Seoul High Court 2013No53) filed a petition for review of the instant Seoul High Court 79No786 case against T, and the said court accepted the petition for retrial and reversed the lower judgment on July 26, 2013, and acquitted the Defendant T.

D. Family relationship and inheritance of the plaintiff et al.

(1) The Plaintiff Q had the Plaintiff’s Z with the wife Plaintiff AA, the East Plaintiff AB, AC, AD, and AE.

(2) Plaintiff A had children AG, AH, and AI between Defendant AF and Defendant AF, and had PJ, AJ, AK, P, or Plaintiff AL. The AJ had children, Plaintiff AM, and Plaintiff AK’s children, Plaintiff N, AO, AP, and Q. The CJ died on May 21, 2006, and CK died on February 29, 2008, respectively. (3) Plaintiff B had children AS between Defendant AR and Defendant AR, and Plaintiff B died on February 27, 2008.

(4) The Plaintiff R formed the Plaintiff AY and AZ between the wife Plaintiff AX, and there were father BA, mother BB, type Plaintiff BC, Plaintiff BD, and BE. The Plaintiff died on June 10, 1982 and BA on June 24, 1982.

(5) E had a child G, H, and father F, Dong F, BG, Plaintiff B, BH, BI, and BJ. BG had a child Plaintiff BL and BM between Plaintiff BK. On February 29, 198, E died on November 5, 1998, BG, and BG died on July 21, 2006, respectively. (6) Plaintiff BN, Dong BN, BBO, BV, BP, and BP were born between Plaintiff BY and his wife. Plaintiff BY and his child, BR, BS, BU, BV, BV, BV, BV, B, and BP were deceased on July 21, 2006, and Plaintiff BY and his child, B, B, B, B, B, B, B, B, B, B, B, B, and B were deceased on May 21, 201 and Plaintiff BY and Plaintiff B, B, B, B, B, B, B, B, B, B, B, B1981, 29.

(7) T had children CD and CE between the wife Plaintiff X, and there were father CF and MacG. CG died on September 30, 1995; CF on November 19, 1987; and CF on March 22, 201, respectively. (8) Plaintiff C had children CI, CJ, CK, CK, and CL between the wife Plaintiff CH and the wife, and there were mother CM, Dong CN, and CO.

(9) The Plaintiff D had children C Q and CR between the wife Plaintiff CP and the wife Plaintiff CP, and there were father CS, mother CT, type Plaintiff CU, Dong CV, CW, CW, CY, CY, and CZ. The CS died on September 28, 1983, and CT on August 6, 201.

(10) S had children DB, and DC between the wife and the wife, and the father, mother, DE, type DF, DG, Plaintiff DH, DI, DJ, DJ, DK, and DL were affiliated with the wife, and DF had children DN, DP, D Q, and DDR. DG had children DP, DP, D Q, and DDR. The DG died on January 21, 1981; DG died on September 5, 1984; DG died on April 3, 200, DF died on September 11, 201; and DG died on September 23, 201, Plaintiff CMF died on September 20, 200; Plaintiff CMF died on September 23, 2011, Plaintiff 204, Plaintiff 1, and Plaintiff 3B died on September 11, 2011.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 1 through 36, 38 through 41, 43, 47 through 49, 56 through 62 (including provisional numbers), and the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. In the first place, the President, who is a political party, did not correspond to the requirements for the issuance of an emergency measure with a view to blocking the resistance of the people that criticizes the new constitution after the three-party amendment, but rather did not meet the requirements for the issuance of an emergency measure. As such, a series of actions, such as the issuance of an emergency measure by the President and an investigation, trial, detention, etc., based on such action, constitute a tort against the plaintiffs.

B. Preliminaryly, the public officials belonging to the defendant arrested the plaintiff on the ground of the violation of Emergency Measure No. 9, and investigated the plaintiff, etc. into unlawful acts such as harsh treatment, etc., and detained the plaintiff, etc. for a long time with the evidence obtained thereby, thereby causing physical and mental pain to the plaintiffs. Thus, the defendant is liable to compensate the plaintiffs for damages caused by tort.

3. Determination on the defense prior to the merits

A. The defendant asserts that there is no benefit in the protection of rights as to the plaintiffs who received compensation, medical allowances, and living allowances (hereinafter referred to as "compensation, etc.") under the Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement (hereinafter referred to as the "Redivatization Compensation Act"), since judicial compromise has been established.

B. Legislative purport of the Democratization Compensation Act, the pertinent provision, the consent and submission by the applicant. Article 18(2) of the Democratization Compensation Act provides that if the applicant consented to the determination of the payment of compensation amount, such as the effect as judicial compromise, in particular, the Commission’s compensation amount, and the stability in the determination of the payment of compensation amount shall be extended promptly prior to the 20th anniversary of the 30th anniversary of the 20th anniversary of the 10th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 3rd anniversary of the 20th anniversary of the 3rd anniversary of the 20th anniversary of the 3rd anniversary of the 3rd anniversary of the 20th anniversary of the 3rd of the 20th anniversary of the 3rd of the 3rd of the 3rd of the 20 judgment.

According to the above facts, the part of the claims of plaintiffs A, B, C, D, and deceased E and network I are already about the claim for judicial compromise between the defendant and the defendant, so it is unlawful as there is no benefit in the protection of rights (However, the part of the judicial compromise is limited to the part of the plaintiffs' claim for lost income and consolation money inherited from plaintiffs A, B, C, and D, and the part of the plaintiffs' claim for lost income and consolation money inherited from the network E and network I, and it does not affect the consolation money and consolation money inherited by other plaintiffs from other plaintiffs, etc. and the family members of the above plaintiffs, their relatives, etc., of other

4. Judgment on the merits

A. Judgment on the main argument

Emergency Decree No. 9 fails to meet the requirements prescribed by Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as “new Constitution”), which is the basis of the issuance, 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 Order 2011Hu689, 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 responsible for the exercise of the national emergency measures in relation to the entire people, and does not have a legal obligation in response to the individual rights of the people. Thus, it cannot be deemed that the exercise of the presidential measures constitutes a civil tort in relation to each citizen (see Supreme Court Decision 2004Da33469, May 29, 2008).

In addition, in a case where the penal law has retroactively lost its effect due to the decision of unconstitutionality by the Constitutional Court, or the court has declared that the statute was unconstitutional or null and void, even if an investigation was initiated based on the relevant law before the statute was declared unconstitutional and a judgment of conviction or acquittal was rendered, such circumstance alone alone does not lead to the State’s liability for damages as it constitutes a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act. However, as long as Article 53(4) and (2) of the new Constitution has not been declared unconstitutional or null and void, a judicial act by a judge who has rendered a judgment of conviction by arresting and detained a suspect without a warrant as referred to in subparagraph 9 of the Emergency Measure, which was in force at the time of the investigation agency’s act of action or by applying subparagraph 9 of the Emergency Measure, it is difficult to conclude that the emergency measure falls under a tort by a public official’s intentional or negligent act.

Therefore, the primary argument of the plaintiffs on the premise that the presidential emergency measure is a tort is without merit.

B. Determination as to the conjunctive assertion

(1) In a case where the judgment of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act, which is the Act on Punishment No. 9, applied to a judgment of conviction against a violation of Emergency Decree No. 9, becomes final and conclusive on the grounds that the punishment No. 9 applied to the defendant was unconstitutional or invalid, barring any other special circumstance, it cannot be deemed that the judgment of innocence was pronounced in the judgment subject to retrial. Thus, solely on the grounds that the judgment of innocence became final and conclusive, it cannot be deemed immediately deemed that the country’s liability for damages was recognized on the ground that the damage caused by an illegal act committed by the State agency under the former part of Article 325 of the same Act cannot be seen as having occurred. In this case, the State’s liability for damages cannot be deemed to have been established on the grounds that there was no causation between the State agency’s illegal act and the conviction during the investigation process, and there was no high probability between the Plaintiff’s 2 and the Defendant’s judgment of innocence No. 97 and the first sentence No. 25 of the Criminal Procedure Act.

① Although the Plaintiff et al. were arrested by the police without a warrant, Article 9 of the Emergency Measures Act, which was in force at the time, provides that “A person who violated this measure or the measures taken by the competent Minister pursuant thereto may arrest, detain, seize, or search without the warrant of a judge.” Article 53(4) of the New Constitution provides that “The emergency measures shall not be subject to judicial review.” Thus, insofar as the Emergency Measures No. 9 was an effective statute that was not declared unconstitutional and invalid, it is difficult to deem that the above arrest conducted by the Plaintiff et al. constitute a tort.

② The Plaintiff et al. was indicted on the charge of violating Emergency Decree No. 9 by producing and distributing the expressive materials that slandered the Constitution and the Emergency Decree. In light of the following evidence and the grounds for appeal by the Plaintiff et al., each conviction against the Plaintiff et al. was presented as evidence of conviction, the Plaintiff et al. cannot be subject to criminal punishment on the ground that the Emergency Decree No. 9 prohibiting all criticism against the Constitution during the investigation and trial process is unconstitutional and invalid. Furthermore, the fact that the Plaintiff et al. produced and distributed the said expressive materials does not appear to have been denied.

【Evidence of the Crimes】

① Part of the Defendants’ partial statement, prosecutor and police preparation protocol on the Defendants and DS interrogation statement, part of the Defendants’ and DS preparation statement, the Defendants’ and DS preparation statement, Pox (O. 24 October 1978), name statement (O. 26 October 26, 1978 and Oct. 27, 1978), and personal information sent to active journalist.

① Plaintiff B and R: The Defendants’ partial statement, part of the protocol of interrogation of the Prosecutor’s interrogation on the Defendants; the police’s protocol of interrogation on the Defendants and DT; part of the protocol of interrogation on the DU’s statement; Defendant R and DS; Defendant R and DS; part of the protocol of interrogation on the DU’s statement; P type (10, 24 and 1978, 17 November 17, 1978), E-C: the Defendants’ partial statement, prosecutor’s and police’s protocol of interrogation on the Defendants and DS; part of the protocol of interrogation on the Defendants’ and DS’ oral statement; P type 3 (17 and 24 October 17, 1978; Defendant’s protocol of interrogation on the Defendants’ protocol of interrogation on the Defendants’ and DS; Defendant’s protocol of interrogation on the Defendant’s partial statement, prosecutor’s and police officer’s protocol of interrogation on the Defendant’s suspect; Defendant’s protocol of interrogation on the Seoul prosecutor’s protocol of interrogation on the Defendants’s 17D and 7.

Plaintiff A and Q: 1. Emergency Decree No. 9 should be deemed to be in violation of the Constitution and invalid or invalidated. 2. The Plaintiff participated in the production and distribution of the written expressions as stated in the facts charged by Plaintiff A, Plaintiff A, and Q as stated in the facts charged 3, and the act of Plaintiff Q again committed an act described in the facts charged. However, each of the written contents does not correspond to each of the emergency measures laws applied by the lower court, and the sentence of the first instance court on March 1 is too unreasonable.

① Plaintiff B and R: (a) the Emergency Decree No. 9 is deemed to be unconstitutional and invalid or invalidated; and (b) each so-called “Emergency Decree” written in the indictment of the Plaintiffs is not appropriate for each corresponding provision of the Emergency Decree; (c) the illegality of exercising a natural legal and moral right due to the exercise of a imprue nature and moral right, which does not violate a justifiable act or social norms, is dismissed; and (d) the sentence of the first instance judgment is too unreasonable.

C E and I: 1. Part of the facts charged was not specified, and 2. Each act described in the facts charged does not correspond to 9. Emergency Measures, and 3. Emergency Measures No. 9 is not in compliance with the requirements of law, and thus, it cannot be deemed an unlawful act.

(a) T: 1. Emergency Measure No. 9 is unconstitutional and invalid or invalidated, and 2. is doubtful as to whether the defendant's act constitutes a so-called Emergency Measure No. 9, and the defendant's act constitutes a justifiable act of Article 20 of the Criminal Code, and the sentence of the first instance court is too unreasonable.

① Plaintiff C, D, and S: (a) deemed that the Defendants violated the Constitution and thus invalidated or invalidated emergency measures; (b) the lower court erred and applied the interpretation and application of Emergency Measures No. 9 by either misapprehending or distorted the contents of the Defendants’ assertion on the inducements made by the Defendants; and (c) the prosecution of only Defendant D without entering into a bid on March 1, 200 in violation of the principle of equity, and the sentence of April and the first instance court is too unreasonable.

③ However, according to the Emergency Decree No. 9, which was enforced at the time, the act of openly denying, opposing, slandering, slandering, or distorting facts or producing and distributing expressive materials containing the contents of the Emergency Decree or the Emergency Decree No. 9 was prohibited by expressive materials such as documents, etc., and thus, the act of producing and distributing printed materials that slander the Constitution and the Emergency Decree was contrary to the Emergency Decree No. 9.

④ At the first instance and the appellate trial of the Plaintiff, Q, B, R, I, and T, there were several attorneys-at-law appointed from among the attorneys-at-law other than the attorneys-at-law in the first instance and the appellate trial of the Plaintiff, Q, B, and E, and there were several arguments for the said Plaintiffs.

6) With respect to Plaintiff A, B, C, D and network E, and I, it is not sufficient to recognize that only the descriptions of the evidence (including paper numbers) Nos. 19, 20, 22, 23, 25, and 26 were forced to make a false confession or committed a cruel act such as assault, etc. by an investigator at the time, 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, 40, and 41, it is recognized that a person was subject to cruel acts, such as assault, intimidation, and diving, while being investigated by the police. However, in light of the circumstances such as the appointment of the defense counsel and the details of pleadings, grounds for appeal, submitted evidence relations, etc., it is difficult to view that the above Plaintiff’s statements made in the prosecutor’s office and the court continues to have been made in a state of voluntariness due to harsh acts

⑤ Article 9(8) of the Emergency Decree, which was in force at the time, stipulates that a person who violated the above measure may seize or search without a judge’s warrant, and thus, the seizure of evidence against the plaintiff et al. cannot be deemed unlawful. There is no evidence that the seizure procedure of each evidence submitted as evidence of guilt is unlawful.

7) The lower judgment was made in the final appeal, review, and criminal compensation proceedings with respect to the Plaintiff, etc.: (a) the criminal trial against Plaintiff A, Q2, B, R, C, D, S, and deceased I was rendered without final judgment due to the invalidation of the relevant statute; and (b) the criminal trial against the Defendant was concluded by the judgment of acquittal without final judgment due to the invalidation of the relevant statute; and (c) the criminal trial against the Plaintiff, E was concluded by the decision of rejection of the public prosecution due to the death of the Defendant. The purport of “the instant facts charged is that the instant case constitutes a case where the Emergency Measure No. 9, which is the applicable statute, is unconstitutional and invalid, and thus, constitutes a crime, and thus, the Defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act; and (d) it does not mean that the investigator involved in the criminal investigation

© 원고 A, Q, B, R, C, D, S 및 I, E에 대한 형사보상결정은 '이 사건 공소사실은 그 적용법령인 긴급조치 제9호가 당초부터 위헌·무효이어서 면소 또는 공소기각의 재판을 할 만한 사유가 없었더라면 형사소송법 제325조 전단에 따라 무죄재판을 받을 만한 현저한 사유가 있었다'는 이유로 인용결정을 하였을 뿐 형사소송법 제325조 후단의 무죄사유에 관하여는 판단하지 아니하였다.

(3) The plaintiffs asserted that the plaintiffs et al. were subject to harsh acts, such as assault and intimidation, etc., committed by an investigative agency without any defense counsel's interview, and the human rights were infringed at the confinement facility for a long time, and they suffered damage to the investigative agency's surveillance, employment restrictions, inheritance, re-detention, etc. even after release, and thus, the defendant shall compensate the plaintiffs for damages caused by such unlawful acts.

However, even if the above illegal act is recognized, the plaintiffs could claim for State compensation against the defendant from the date when the above individual illegal act was terminated, and since the lawsuit of this case was filed on September 17, 2013, it was obvious that five years have passed thereafter, the plaintiffs' claim for damages arising from the above illegal act should have expired by prescription (the above illegal act is not recognized as causation between conviction and conviction, and even before the decision of unconstitutionality as to T's new judgment or emergency measure No. 9, even before the above decision of unconstitutionality as to this part of this case, the plaintiffs could not be viewed as an abuse of rights, because there are special circumstances that make it possible for the plaintiffs to exercise their right to claim damages against the defendant, or trust that the defendant would not claim the extinguishment of right by the expiration of the statute of limitations.

C. Sub-decision

Therefore, the plaintiffs' primary and conjunctive arguments regarding the establishment of tort are without merit, and therefore, the plaintiffs' arguments are without merit.

5. Conclusion

Therefore, among the lawsuit of this case, the part of the plaintiff's claim, the part of the claim for lost income and consolation money of the plaintiff F, G, and H inherited from the plaintiff F, the part of the claim for lost income and consolation money of the plaintiff F, H, and the part of the claim for lost income and consolation money of the plaintiff J, K, L, and M inherited from the plaintiff J, K, L, and M are unlawful. Thus, they are dismissed, respectively. The remaining claims of the plaintiffs except the above plaintiffs and the remaining claims of plaintiffs B, C, D, F, H, H, K, K, L, and M are dismissed as they are without merit. It is so decided as per Disposition.

Judges of the presiding judge:

Judge Choi Jin-c

Judges Kim Ge-han

1) From October 7, 197 to October 6, 1978, 125 cases concerning democracy and human rights for which the media of Korea was not reported at all during one year from October 7, 1977

It is a document with six incentives arranged in the form of a single paper, which simply prepares a summary of the actual occurrence without comment.