In cases where an applicant was found guilty of a person involved in a democratization movement and returned his/her injury by a confession made by an adviser, etc. after illegal arrest and detention in relation to a democratization movement, and consented to the decision of the Compensation Deliberation Committee, whether the same effect as a judicial compromise takes effect pursuant to Article 18(2) of the Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movement (affirmative) and whether the partial damage may be excluded to the extent that the effect of judicial compromise is effective (negative)

[Majority Opinion] (A) Where the legislative purpose of Article 18(2) of the Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movement (hereinafter “The Act on the Compensation for Democratization Movement”) consents to a decision on the payment of compensation, medical subsidies, and living allowances (hereinafter “compensation, etc.”) after considering the legislative purport of Article 2 subparag. 1 and subparag. 2(d), Articles 10(1), 14(1), and 18(2) of the same Act, Article 20 subparag. 3 of the Enforcement Decree of the Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movement, and Article 18(2) of the Enforcement Decree of the Act on the Compensation for Democratization Movement (attached Form 10) in addition to the contents of the written consent and written request prepared and submitted by the applicant, the legislative purpose of Article 18(2) of the Act on the Compensation for Democratization Movement has the same effect as a settlement in court, in particular, prior to litigation by granting res judicata effect, and granting the applicant’s decision on the payment of compensation, etc.

(B) According to Article 2 subparag. 2(d) and Article 9(1)1 of the Democratization Compensation Act, and the former part of Article 12-2(1) of the Enforcement Decree of the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement, etc., the Act on the Compensation for Democratization Movement does not distinguish the circumstances leading up to conviction in granting living allowances to persons who were convicted of a democratization movement for a certain period. Thus, the Act on the Compensation for Democratization Movement does not distinguish the circumstances leading up to conviction in the payment of living allowances to persons who have been born for a certain period. Thus, not only the cases where a person was convicted of a legitimate criminal procedure but also the cases where a person was convicted due to an illegal act committed by an investigative agency, such

(C) Therefore, the damage suffered by an applicant due to a cruel act such as adviser, etc. committed by an investigative agency after illegal arrest and detention in relation to democratization movements falls under the damage incurred in relation to democratization movements and thus found guilty. Thus, if the applicant has consented to a decision on the payment of compensation, etc. by the commission, the same effect as a judicial compromise has occurred pursuant to Article 18(2) of the Act on the Compensation for Democratization Movement, and even if the judgment of innocence became final and conclusive in the criminal review procedure for the above reasons, the damage in part cannot be excluded to the extent that the effect of judicial compromise is limited.

[Dissenting Opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim So-young] (A) In a case where, in relation to a democratization movement, an investigative agency led to a confession of a crime by committing a cruel act, such as adviser, after being illegally arrested and detained (hereinafter “illegal act by an investigative agency”), was convicted of the crime, and was tried accordingly, and the judgment of innocence was revoked and the judgment of innocence became final and conclusive, the legal meaning of the series of processes (hereinafter “retaliatory, etc.”) following the victim’s arrest and detention to the prison of punishment is different before and after the judgment of retrial.

(B) The circumstance in which the judgment of innocence was concluded against the applicant in the retrial procedure falls under a case where a significant change occurs in the circumstances that form the basis for the effect of reconciliation by a consent to the decision on the payment of compensation, etc., and thus, the compensation, etc. recognized in the procedure for the decision on the payment of the commission prior to the change of circumstances seems not to have properly assessed

(C) If a claim for compensation for mental harm suffered from a tort committed by an investigative agency, which was confirmed by a retrial, is not allowed on the ground that the victim consented to a decision on the payment of compensation, etc. made before the judgment of innocence is affirmed, due to the confirmation of the truth-finding decision and the judgment of innocence based on the review procedure under the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”), this does not accord with the legislative purport of the Act on the Compensation for Democratization, which provides for compensation for damage in relation to democratization movements, as well as with the legislative intent of the Act on the Compensation for Democratization, which imposes an obligation to take appropriate measures for the recovery of damage suffered by the victim based on the discovered truth.

(D) Unlike the Supreme Court’s decision or the court’s practice, deeming that it is no longer possible to exercise the right to claim damages for mental distressed by the victim due to the prolonged calendar, etc. newly discovered due to revocation of a judgment of conviction based on a new judgment, solely on the circumstance that the judgment of innocence was rendered by a new trial procedure and consented to the decision of the payment of compensation, etc. is clearly inconsistent with the concept of fairness and justice.

Article 2 subparag. 1, subparag. 2 (d) of the Act on the Honor Restoration, Compensation, etc. to Persons Related to Democratization Movement, Articles 9(1)1, 10(1), 14(1), and 18(2) of the Act on the Honor Restoration, Compensation, etc. to Persons Related to Democratization Movement, Articles 12-2(1), and 20 of the Enforcement Decree of the Act on the Honor Restoration, etc. to and Compensation to Persons Related to Democratization Movement.

Supreme Court Decision 2012Da45603 Decided March 13, 2014 (Gong2014Sang, 834)

Plaintiff 1 and six others (Law Firm Western, Attorneys Gyeong-hee et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2012Na39181 decided November 29, 2012

The part concerning plaintiff 2, the part concerning the claim of consolation money of the plaintiff 1, the part concerning the claim of consolation money of the plaintiff 3, 4, 5, 6, and 7, and the part concerning the claim of consolation money of the deceased non-party 1's deceased non-party 3, 4, 5, 6, and 7 shall be reversed, and the judgment of the first instance as to this part shall be revoked, and the lawsuit as to the corresponding part shall be dismissed. The remaining appeal against the plaintiff 1, 3, 4, 5, 6, and 7 shall be dismissed. Of the total costs of the lawsuit, the part concerning the claim between the plaintiff 1, 3, 4, 6, and 7 and the defendant shall be borne by the above plaintiffs

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the part of Plaintiff 2’s claim, part of Plaintiff 1’s claim for consolation money, part of Plaintiff 3, 4, 5, 6, and 7’s claim based on the portion of the deceased Nonparty 1’s share of inheritance

A. Article 2 Subparag. 1 of the Act on the Restoration of and Compensation to Persons Related to Democratization Movements (hereinafter referred to as the "Act on Democratization Movement") provides for the purpose of promoting the stability of their lives and the improvement of their welfare by the State for persons who have sacrificed in relation to democratization movements and their bereaved family members, as well as contributing to the development of democracy and national harmony. Article 2 Subparag. 1 of the Act provides that "divatization movements" means activities to contribute to the realization of the ideology and value pursued of the Constitution and the establishment of democratic constitutional order and to the recovery and extension of the freedom and rights of the people by resisting the authoritative rule that violates the fundamental rights of the people guaranteed by the Constitution on or after March 24, 1964, and that "the persons related to democratization movements (hereinafter referred to as "related persons") shall be deemed to have agreed to receive compensation in accordance with the provisions of Article 4 of the Civil Procedure Act, together with a written consent of the Committee for the Restoration of Honor and Compensation." Article 2 provides that "the persons related to democratization movements who are subject to the payment of compensation or other related persons shall be paid compensation without delay:

In addition, Article 20 of the Enforcement Decree of the Democratization Compensation Act provides that "where an applicant who has received a notice of decision on compensation, a written decision on the payment of living allowances or a written decision on the restoration of honor intends to receive compensation, etc., he/she shall submit to the Committee a written consent and written request stating the following matters (attached Form 10), along with one copy of a written decision on compensation, a written decision on the payment of living allowances or a written decision on the restoration of honor, and a certificate of personal seal impression of the applicant," and subparagraph 3 of the above Enforcement Decree provides that "A consent to the decision on compensation and a claim for the payment of compensation, etc." (attached Form 10) provides that "A consent and a written request for the payment of compensation, etc. shall be made if the applicant

In full view of the legislative purport of the Act on the Compensation for Democratization, the contents of relevant regulations, the consent prepared and submitted by the applicant, and the contents of the written claim, where the legislative purpose of Article 18(2) of the Act on the Compensation for Democratization has consented to a decision on the payment of compensation, etc., the effect of judicial compromise as if the applicant gives res judicata, in particular, it is to promptly terminate and implement the same through the procedures for the decision on the payment of compensation and give stability to the decision on the payment of compensation, etc. prior to the litigation by granting the applicant’s compensation, etc. In a case where the applicant has consented to the decision on the payment of compensation, etc. of the Commission, it shall be deemed that the same effect as the judicial compromise under the Civil Procedure Act has occurred as to all the damage arising in relation to the democratization movement for which the applicant received compensation, etc. (see Supreme Court Decision 2012Da4560

Meanwhile, Article 2 subparag. 2(d) of the Democratization Compensation Act provides that “a person who has been convicted of a democratization movement on the ground of his/her related person” as one of the related persons. Article 9(1) provides that “The Committee may grant subsidies to assist his/her livelihood to any of the following persons and his/her bereaved family members.” Article 12-2(1) of the Enforcement Decree of the Democratization Compensation Act provides that “a person detained for at least 30 days on the ground of democratization movements.” The former part of Article 12-2(1) of the Enforcement Decree of the Democratization Compensation Act provides that “a person detained for at least 30 days among the persons eligible for living allowances under Article 9(1) of the Act shall be paid an amount calculated by multiplying the minimum cost of living in the relevant number of days, but the amount shall not exceed 50,000 won.” According to the relevant provision, the Act on the Democratization Compensation does not distinguish the circumstances leading to conviction in the process of performing a judicial act for a certain period of time on the ground of his/her conviction and the same criminal investigation agency.”

B. The lower court acknowledged the following facts based on the evidence duly admitted.

(1) The Plaintiff 1, 2, and the deceased Nonparty 1 (hereinafter “Plaintiff 1, etc.”) participated in the amendment support name published on January 7, 1974 by 61, the door, and were subjected to harsh acts, such as sampling investigation, tata and various advisers, oil, and intimidation, etc., between January 14, 1974 and January 22, 1974, by the time when the investigator affiliated with the National Defense Security Headquarters was illegally arrested and detained and detained, and was indicted.

(2) The Plaintiff 1 et al. prepared a writing or written statement as they did not take place in these harsh acts. Ultimately, based on these evidence, the Plaintiff 1 et al. published this article and received Plaintiff fees in Japan with the knowledge that it was the disguised place of the anti-government organization of this anti-government organization of this Do, which is a Korean magazine published in Japan, and was detained and indicted in violation of the anti-public law, violation of the National Security Act, and violation of the Foreign Exchange Management Act (hereinafter the investigator et al. refers to a series of acts indicted by the Plaintiff 1 et al. through illegal confinement, al., advisory, conference and threat).

(3) On June 28, 1974, the first instance court convicted Plaintiff 1 et al. of all the facts charged against Plaintiff 1 et al., and sentenced Plaintiff 1 to a suspended sentence of imprisonment for one year, suspension of qualification for Plaintiff 1, suspension of qualification for one year, suspension of qualification for Plaintiff 2, suspension of qualification for two years, suspension of qualification for Plaintiff 1 et al., and suspension of qualification for one year. Accordingly, the appellate court appealed by Plaintiff 1 et al., the appellate court dismissed Plaintiff 1’s appeal, and sentenced Plaintiff 2 for three years for Plaintiff 2, suspension of execution of imprisonment for two years for the deceased Nonparty 1. On July 27, 1976, all appeals by Plaintiff 1 et al. were dismissed, and the above judgment became final and conclusive as is (hereinafter referred to as “instant judgment subject to a retrial”).

(4) On April 22, 2003, Plaintiff 1 et al. was designated as a related person according to the Commission’s decision, and thereafter, Plaintiff 1 et al. received 6,209,040 won as living allowances on July 26, 2005 pursuant to the Commission’s decision to pay compensation and other compensation, etc., and submitted to the Commission the consent and written claim under the Democratization Compensation Act, respectively, for living allowances of KRW 1,126,960 as living allowances on November 5, 2008 and KRW 13,542,990 as living allowances on November 3, 2008, and the deceased Nonparty 1 received 11,017,260 won as living allowances on August 22, 2005.

(5) Meanwhile, Plaintiff 1 et al. filed a petition for a retrial on the instant judgment subject to a retrial, and the retrial court rendered a judgment of innocence on December 23, 201 with respect to the facts charged against Plaintiff 1 et al. in violation of the National Security Act and violation of public law, on the grounds that the confession of the suspect in the investigative agency was caused by adviser, threat, etc., and cannot be considered as evidence because there was no other evidence to prove the facts charged. On September 8, 2011, Plaintiff 2 and the deceased Nonparty 1 were acquitted, respectively, and on December 23, 2011.

C. Examining these facts duly admitted by the court below in light of the legal principles as seen earlier, even if a judgment of conviction by the defendant's illegal act of this case was revoked later through review and the judgment of innocence became final and conclusive, since all damages suffered by the plaintiff 1 et al. due to the reinstatement of the illegal act of this case occurred in relation to democratization movements as prescribed by the Democratization Compensation Act, so long as the plaintiff 1 et al. consented to the Commission's decision on the payment of compensation, etc., it shall also be deemed as having the same effect as a judicial compromise pursuant to Article 18 (2) of the Democratization Compensation Act. Accordingly, the lawsuit of this case claiming compensation for damages caused by the illegal act of this case by the plaintiff

Nevertheless, the court below held that even if the plaintiff 1 et al. received the compensation, etc. as prescribed by the Democratization Compensation Act, the same effect as the judicial compromise thereby does not affect the plaintiff 1 et al.'s lawsuit claiming consolation money due to the recovery from the tort of this case. In so determining, the court below erred by misapprehending the legal principles on the scope of validity of Article 18 (2) of the Democratization Compensation Act, thereby affecting the conclusion of the judgment.

2. As to the part of the plaintiff 1's claim based on the share of consolation money of the deceased non-party 2, the part of the plaintiff 3, 4, 5, 6, and 7's claim for consolation money

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal specify the grounds of final appeal in detail and clearly state what points of the judgment below is in violation of the statutes, and it is inevitable to treat the grounds of final appeal as failing to submit the grounds of final appeal when the grounds of final appeal submitted by the appellant contain no such specific and explicit reasons (see Supreme Court Decision 2000Da29356, 29363, Mar. 23, 2001, etc.).

The ground of appeal of this case does not contain any indication as to which part of the judgment of the court below against the claim of the above plaintiffs is in violation of the law, nor contains any indication as otherwise alleged in the ground of appeal, and there is no such indication in the petition of

3. Conclusion

Therefore, among the judgment of the court below, the part concerning the claim of consolation money of the plaintiff 2, the part concerning the claim of consolation money of the plaintiff 1, the part concerning the plaintiff 3, 4, 5, 6, and 7, and the part concerning the claim of consolation money of the deceased non-party 1's deceased non-party 3, 4, 5, 6, and 7 shall be reversed, and since the Supreme Court is sufficient to directly render a judgment, it shall be dismissed pursuant to Article 437 of the Civil Procedure Act. The judgment of the court of first instance concerning this part shall be revoked and the lawsuit concerning this part shall be dismissed. The remaining appeals against the plaintiff 1, 3, 4, 5, 6, and 7 shall be dismissed, and the decision shall be made as per the Disposition. This decision is delivered with the assent of all Justices other

4. Dissenting Opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim So-young

If an applicant has consented to the decision on the payment of compensation, etc. of the Commission, the majority opinion that considers the same effect as a judicial compromise shall take place pursuant to Article 18(2) of the Democratization Compensation Act even for mental damage suffered by an applicant due to a tort committed by an investigative agency is not acceptable for the following reasons.

A. In a case where a person who was illegally arrested and detained by an investigative agency in relation to a democratization movement, led to confession of a crime, received a conviction based on his/her adviser, etc. (hereinafter “illegal act by an investigative agency”), and subsequently was found guilty, and the judgment of innocence was revoked and the judgment of innocence became final and conclusive, the legal meaning of a series of processes (hereinafter “retaliatory, etc.”) after the victim’s arrest and detention is different from before and after the judgment of retrial is rendered. While the victim’s clothes, etc. are deemed lawful on the premise that the previous conviction is valid before and after the judgment of retrial is rendered, criminal compensation, restoration of honor, and claim for damages against the State, even if the victim was not guilty after the judgment of new trial is rendered, the objective and legal assessment thereof is inconsistent with each other.

In addition, although there is no difference in the victim's mental suffering due to a tort committed by an investigative agency, the scope of assessing that one's clothes, etc. were the result of a valid conviction before and after the new judgment was delivered, and that one's own clothes, etc. could only be compensated or compensated before and after the new judgment was not limited. On the other hand, if it was found through a new judgment that one's act was legally unguilty by an investigative agency, and that there was a violation of the freedom of body guaranteed by the Constitution, then there is a difference in the degree of suppression of the victim's suffering, and if it was revealed that the victim's mental suffering was infringed, it would be reasonable to view that the scope of assessing that one's own mental suffering is entitled to receive the victim's injury compared to the previous judgment.

B. Generally, a compromise has its original effect (see Article 732 of the Civil Act), and a judicial compromise has the same effect as a final and conclusive judgment (see Article 220 of the Civil Procedure Act). The scope of effect of a compromise in court is limited to the matters agreed to be agreed upon by the parties by mutual concessions, and it does not take effect as to the matters which were not alleged by the parties, but as well as matters which were not yet understood on the premise of mutual compromise (see Supreme Court Decision 2009Da90856, Jul. 28, 2011, etc.). In other words, a compromise is assumed as a group of rights and obligations asserted by the parties to form legal relations as agreed upon with each other, and thus, it should be presumed that the parties can recognize and exercise the existence of the relevant rights and obligations. In other cases, the validity of a compromise cannot be recognized solely on the ground that a judicial compromise was

However, as in the case of this case, in case where an applicant who applied for procedures for compensation under the Democratization Compensation Act due to reasons such as having committed a tort by an investigative agency in relation to a democratization movement and having been found guilty as a democratization movement and has received compensation, etc. with consent to a decision of the Commission on the payment of compensation, etc., it is clear that at the time of consent, the circumstance where a judgment of conviction was revoked and not guilty, which became final and conclusive by the retrial procedure, was not reflected in the final judgment at the time of the consent, and it was difficult to anticipate such circumstances in the situation where the retrial procedure has not yet commenced. Therefore, it is difficult to consider such circumstance as the premise of compromise or to consider the damage to the mental suffering of

Therefore, since the circumstance in which the judgment of innocence was affirmed in the retrial procedure is a case where a significant change occurs in the situation that forms the basis of the effect of reconciliation by the consent to the decision on the payment of compensation, etc., it seems that the compensation, etc. recognized in the procedure for the decision on the payment of the Committee prior to the change of circumstances did not properly evaluate and reflect the above and the

Therefore, even if the applicant consented to the decision on the payment of the compensation, it is not reasonable to view that the compensation has been made for mental damage caused by the illegal act of the investigative agency, or that the judicial compromise has an effect on the mental damage.

C. The Act on the Democratization Compensation was enacted on January 12, 200 and promulgated on January 12, 200, thereby enabling persons who have made a sacrifice in relation to democratization movements and their bereaved family members to receive prompt compensation for damages prior to complicated litigation procedures. In addition, since five years thereafter, the Framework Act on the Settlement of Criminal History for Truth and Reconciliation (hereinafter “The Act on the Settlement of Criminal History”) was enacted and promulgated, and the State had the State investigate distorted or concealed truth in a democratic or anti-human rights-related case, etc., ascertaining the truth that was distorted or concealed, and imposing an obligation to take appropriate measures to protect victims’ damage and restore their reputation based on the discovered truth. After that, through the truth-finding process under the Act on the Settlement of Criminal History, the truth was revealed that the facts charged by the investigating agency were distorted in the course of democratization movements including the instant case under the Act on the Settlement of Criminal History, and that the conviction was revoked and the judgment of innocence became final and conclusive, thereby enabling persons related to democratization movements, etc. who suffered damage caused by an investigation agency’s illegal act.

However, if the court does not allow the claim for compensation for mental harm caused by illegal acts of the investigative agency, which was confirmed through retrial, on the ground that the court consented to the decision of not guilty, including the compensation that was made before the judgment of not guilty became final and conclusive, by the determination of innocence based on the truth-finding and retrial procedures, this does not accord with the legislative purport of the Act on the Demodization Compensation, which provides for compensation for damage compensation, as well as with the legislative purport of the Act on the Settlement of History, which imposes an obligation to take appropriate measures for recovery of damage on the State, based on the established truth.

D. In a number of past history cases where a confession of facts constituting a tort by an investigation agency in relation to democratization movements and a conviction was made on the basis thereof, and the judgment of innocence was made later by the investigation agency, which became final and conclusive by the retrial procedure, the Supreme Court recognized that there was an objective disability in which the State could not exercise its right to claim compensation against the damages caused by a tort by an investigation agency prior to the cancellation of conviction by the retrial procedure, and thus rejected the State’s defense of extinctive prescription as an abuse of right (see Supreme Court Decision 2013Da201844, Dec. 12, 2013). As seen earlier, it appears that the legal evaluation of a tort by an investigation agency is objectively different after the retrial procedure and the victim was also subject to the revocation of conviction by the retrial procedure, and that the victim was not able to assert such important legal matters.

In addition, the court's practice has recognized a large amount of living allowances or consolation money exceeding the amount of the criminal compensation as prescribed by the Democratization Compensation Act by reflecting the circumstances in which the judgment of innocence was determined by the retrial procedure in the past case. This is not only based on the premise that the victim suffered mental suffering beyond criminal compensation, etc. by the judgment of innocence but also on the premise that the victim suffered mental suffering beyond criminal compensation, etc. by the judgment of innocence, but also on the premise that the victim was found to have suffered mental suffering to the extent that the compensation should be recognized. As seen earlier, it can be deemed that the assessment of the degree of mental suffering of the victim by the tort of the investigative agency by taking into account the circumstances revealed that the previous re-examination procedure

However, even though the court's decision to pay compensation, etc. was made without properly reflecting the cancellation of conviction due to a tort committed by an investigative agency or a judgment of new trial that has been legally important in a past history case, and the victim's mental suffering, etc. related thereto, and the amount of compensation, etc. recognized in the decision to pay compensation procedure is considerably less than the amount of consolation money generally accepted in consideration of the victim's considerable mental suffering in other past cases where the facts are revealed, unlike the Supreme Court's decision or the court's decision to pay compensation, it is clear that the court cannot exercise the right to claim compensation for mental damage any more than the amount of consolation money newly discovered by the cancellation of a new judgment of new trial just because it agreed to the decision to pay compensation, etc., unlike the Supreme Court's decision or the court's business practice, is contrary to the concept of fairness and justice.

Examining the facts acknowledged by the court below from this point of view, since the conviction of the plaintiff 1 et al. against the plaintiff 1 et al. was later identified as illegal acts of this case by the investigative agency to which the defendant belongs, and the judgment of innocence was revoked through the retrial procedure, it cannot be deemed that the same effect as a judicial compromise under Article 18 (2) of the Democratization Compensation Act has occurred with respect to mental damage among the damage suffered by the return of the plaintiff 1 et al.

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

Justices Shin Young-chul (Presiding Justice)