2014Da231729 Damage, Claim

1. A;

2. B

3. C

Korea

Seoul High Court Decision 2014Na2024516 Decided October 28, 2014

June 11, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The Presidential Emergency Decree No. 1 (hereinafter referred to as "Emergency Decree No. 1") and Presidential Emergency Decree No. 4 (hereinafter referred to as "Emergency Decree No. 4") lack the requirements per se stipulated in Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as "Personal Constitution") which served as the basis of the issuance thereof, and are unconstitutional and invalid since they violate the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, right to housing, right to petition, and academic freedom as stipulated in the current Constitution and the current Constitution (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010; Supreme Court en banc Decision 2011Do2631, May 16, 2013).

Furthermore, even if the Emergency Decree Nos. 1 and 4 was declared unconstitutional and invalid ex post by a court, the exercise of the Presidential Emergency Decree’s right based on the New Constitution is a state act with high level of political nature, and the President, in principle, assumes political responsibility in relation to the exercise of national emergency power, and does not bear legal obligations in response to individual rights. Thus, the exercise of the Presidential’s right cannot be deemed to constitute a tort under civil law in relation to individual citizens (see Supreme Court Decision 2012Da48824, Mar. 26, 2015).

Nevertheless, the court below held that the acts of the President’s Emergency Measure Nos. 1 and 4 and public officials belonging to the defendant

In accordance with subparagraphs 1 and 4 of the Emergency Decree, the court determined that the act of performing the duty of arresting and detaining the plaintiffs without a warrant constitutes a tort by a public official's intentional or negligent act under Article 2 (1) of the State Compensation Act. In so determining, the court below erred by misapprehending the legal principles as to the elements for establishing the State's liability under Article 2 (1) of the State Compensation Act.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok

The Chief Justice Park Jae-young

Justices Kim Gin-young