2014Na53024 Compensation for damages

1. A;

2. B

Korea

Gwangju District Court Decision 2014 Ghana527207 Decided September 2, 2014

January 14, 2015

January 30, 2015

1. Each of the plaintiffs' appeals is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff A the amount of KRW 5,00,000, KRW 1,000,000 and the amount of KRW 5% per annum from the delivery date of the complaint of this case to the pronouncement date of the judgment of the first instance, and 20% per annum from the next day to the full payment date of the complaint of this case.

1. Basic facts

A. Plaintiff A requested a constitutional complaint as 2013Hun-Ma750, and Plaintiff B was appointed as the public representative on November 19, 2013.

B. On January 16, 2014, from around 14:40 to 14:45, and from around 15:12 on January 27, 2014 to from January 15:27, 2014, Plaintiff B visited Plaintiff A in each Navy prison, and Plaintiff B demanded an interview at an attorney meeting room that guarantees the confidentiality of meeting, but the interview was conducted at a place where the facilities to prevent contact are installed by the refusal of the side of the Southern prison.

【Ground for recognition】 The fact that there has been no dispute

2. The plaintiffs' assertion

The fact that the person in charge of the Maritime prison allowed the plaintiffs to meet in the facilities to prevent contact and recorded the contents of the meeting is a violation of jurisdiction. Even if a prison officer did not record or record the house, as long as the prison officer scamed through the audience and the contents of the meeting, it infringes on the right to a trial, and the defendant must compensate for the damages suffered by the plaintiffs as the employer of such prison officer.

3. Whether liability for damages arises;

(a) Whether the content of meeting is recorded;

First, there is no evidence to acknowledge the assertion that the person in charge of the prison recorded the contents of the meeting.

(b) Whether the interview with a facility to prevent contact is illegal;

In the case of constitutional complaint against Article 58(4) of the Enforcement Decree of the Punishment and Execution Act (the Constitutional Court Order 2011Hun-Ma122, Aug. 29, 2013), which is a provision on the basis of the act of restricting meeting in this case, Article 58(4) of the Enforcement Decree of the Punishment and Execution Act declares that the right to trial of prisoners is in violation of the Constitution since it infringes upon the right to trial of prisoners by obstructing them from obtaining efficient assistance from the attorney-at-law in preparing for trial. However, for legal stability, by ordering the improvement legislation until July 31, 2014, the government indirectly ordered the act of visiting lawyers in the place where the facilities to prevent contact are

However, the Constitutional Court's decision of unconstitutionality as to a law includes not only a simple decision of unconstitutionality but also a degree of inconsistency with the Constitution, and all of them have binding force. However, in a case where the removal of the unconstitutional law in the legal order is likely to cause legal gap or confusion, there is a case where the Constitutional Court makes a decision of unconstitutionality as to removal of the unconstitutional law in the legal order, and there is a case where the law of unconstitutionality continues to be applied for a certain period, and all of the State agencies are bound by it, and the court may continue to apply the unconstitutional law in such exceptional cases ( Constitutional Court en banc Decision 2012Hun-Ma80

In this case, the Constitutional Court Order 201HunMa122 dated August 29, 2013, which declared that Article 58 (4) of the Enforcement Decree of the Punishment Act is in violation of the Constitution and ordered improvement legislation until July 31, 2014, state agencies shall be bound by the Act. Thus, it cannot be deemed that there was an error of law that could be the object of compensation for damages in the act of the person in charge of the South Korean prison, for which the Constitutional Court ordered temporary use in the facilities for blocking contact to meet.

On August 29, 2013, 201Hun-Ma122, the plaintiffs asserted that the defendant shall be liable for damages due to the acts of the person in charge of the South-North prison, who committed the act of the person in charge of the South-North prison, who committed the act of the person in charge of the prevention of contact, unless there are special circumstances to recognize that the act of the person in charge of the prevention of contact may cause harm to the rules and order of the correctional institution, unless there are special circumstances to allow the person in charge of the prevention of contact to have an interview at the place where the prevention of contact facilities are installed," even before the amendment of the provision of the meeting of this case on August 29, 2013.

On the other hand, the decision of this case is a decision of inconsistency with the Constitution to prevent confusion and side effects that may result in a declaration of simple constitutionality as to the meeting provisions of this case, and thus, it cannot be deemed as having the same effect as a decision of inconsistency with the Constitution. According to the decision of inconsistency with the Constitution and the reasons for provisional application, the decision of this case must be understood as the purport that the provisions of the former Act should be applied before the legislation to improve the meeting provisions of this case is implemented, and if the decision of this case is deemed as an illegal act that is subject to compensation for damages under the Acts and subordinate statutes ordering provisional application, it would be inconsistent with the decision of unconstitutionality and result in denying the decision of inconsistency itself. In light of the fact that the decision of this case was rendered on August 29, 2013 and the decision of inconsistency with the Constitution itself becomes a result of denying the decision of inconsistency with the Constitution itself

4. Conclusion

Therefore, the claim of the plaintiffs in this case is dismissed without any further review. The judgment of the court of first instance is justified in conclusion, and it is so decided as per Disposition by the assent of all.

Judge Song-dae (Presiding Justice)

Judges Han-ok

Judges Gong Jin-jin