Plaintiff 1 and four others (Law Firm Yang Jae, et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

September 1, 2016

Seoul Central District Court Decision 2015Da5060125 Decided September 18, 2015

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay 10 million won to the plaintiff 1, and 4,000,000 won to the plaintiff 2, and 3,000,000 won to the plaintiff 3,4, and 5, respectively, and 20% interest per annum from the delivery date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The purport of the plaintiffs' appeal

Of the judgment of the court of first instance, the part against the plaintiffs falling under the order to pay below shall be revoked. The defendant shall pay to the plaintiffs 1 5 million won, 3 million won to the plaintiffs 2, and 1,000,000 won to the plaintiffs 3, and 2,000,000 won to the plaintiffs 4 and 5, and 2,000,000 won to the plaintiff 4 and 5, with 20% interest per annum from the date of delivery of the copy of the complaint of this case to the date of complete payment.

B. The defendant's purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Basic facts

A. Entry and settlement of Nonparty 1

Nonparty 1 is a Chinese national residing in the area north of the Military Demarcation Line (hereinafter “North Korea”). Around April 25, 2004, Nonparty 1 entered the Republic of Korea and settled in the Republic of Korea after receiving a decision to protect North Korean defectors pursuant to the North Korean Refugees Protection and Settlement Act (hereinafter “North Korean Refugees Act”). From June 9, 201, Nonparty 1 is a public official of the welfare policy and livelihood security team contract position of the Seoul Metropolitan Government office.

B. Entry of Nonparty 2 and confinement of the Central Joint Examination Center

The non-party 2, who is a partner of the non-party 1, was born in North Korea, also a Chinese national. Around October 30, 2012, the non-party 2 entered the Republic of Korea and applied for protection under the North Korean Refugees Act. At that time, the head of the NIS was admitted to the Central Joint Examination Center (the name was changed to the "North Korean Refugees Protection Center" around July 28, 2014) which is a temporary protective facility established and operated by the head of the NIS based on the North Korean Refugees Act.

C. The contents of the National Intelligence Service’s investigation against Nonparty 2

1) Around February 2011, the National Intelligence Service secured the statement to the effect that Nonparty 1, who was the North Korean defectors, went to the Republic of Korea by pretending the North Korean defectors, and that Nonparty 2, who was the births, wanted to enter the Republic of Korea immediately.

2) While Nonparty 2 denied the fact that he was a foreign national during the process of investigating the entry process, etc. by an investigator of the National Intelligence Service, Nonparty 2 acknowledged that he was a Chinese national and did not have acquired the North Korean nationality on November 5, 2012.

3) Since then, the National Intelligence Service secured the statement to the effect that, through a high strength investigation, the National Intelligence Service had Nonparty 2 prepare a statement or confirmation document several times, and investigating witnesses more than four times, the National Intelligence Service transferred the identity information, etc. of the North Korean defectors collected from Nonparty 1 while residing in North Korea, and then delivered it to the head of the North Korean Hahbuk-do Search Division at the time of Hahon, and according to the direction of the head of the Anti-Investigation Division, the National Intelligence Service entered the Republic of Korea for the purpose of collecting information on North Korean defectors and delivering it to North Korea.

D. Prosecution against Nonparty 1 on charges of violating the National Security Act (Spy)

1) On January 10, 2013, based on Nonparty 2’s statement secured by the Central Joint Examination Center, the National Intelligence Service arrested Nonparty 1 on charges of violating the National Security Act (espionage) and issued a detention warrant on January 12, 2013, and sent the case to the prosecutor’s office on January 29, 2013.

2) The prosecutor summoned Nonparty 2, who was confined in the Central Joint Examination Center, and investigated the witness on eight occasions, and indicted Nonparty 1 on February 26, 2013 as charges of violating the National Security Act (espionage), etc.

E. The plaintiffs' application for interview and communication is dismissed.

1) The Plaintiffs were the attorneys-at-law who was detained Nonparty 1’s defense, and was requested by Nonparty 1 and Nonparty 2 to appoint a defense counsel from Nonparty 3 to Nonparty 2.

2) As follows, the Plaintiffs sent to the Director of the National Intelligence Service an application for an interview with Nonparty 2 by facsimile, stating the time of meeting, date and time of response, and contact details, or by visiting the Central Joint Examination Center to receive an application for an interview with Nonparty 2 directly. On February 6, 2013, Plaintiff 2 visited the Central Joint Examination Center to request the delivery of correspondence to Nonparty 2.

Plaintiff 1, 2, 3, 4 February 5, 2013: (a) on February 5, 2013, 15:0 on February 5, 2013, Plaintiff 1, 2, 3, and 4: (b) on February 5, 2013: (c) on February 5, 2013, Plaintiff 1, 2, 3, and 4; (d) on February 6, 2013; (c) on February 6, 2013; (d) on February 3, 2013; (e) on February 6, 301: 3: 0 on February 6, 2013; (e) on February 6, 2013; (e) on February 3, 2013: Plaintiff 16:0 on February 6, 2013: (e) on February 16, 2013; (e) on February 15, 2013:3:

3) However, the Director of the National Intelligence Service and the NIS investigator affiliated with the NIS did not respond to the Plaintiffs’ request for interview by the time of response and desired meetings as revealed by the Plaintiffs, or all the Plaintiffs’ request for interview on the ground that “Nonindicted 2 does not constitute a suspect subject to interview as a reference witness, and Nonparty 2 does not wish to reach an interview with the defense counsel.”

F. Rescission of confinement and departure of Nonparty 2

1) On April 24, 2013, the Director of the National Intelligence Service completed an investigation with respect to Nonparty 2, and decided not to determine Nonparty 2 as a person eligible for protection under the North Korean Refugees Act, and requested the head of the Seoul Immigration Office to cooperate with Nonparty 2 in handling personal illness, etc., and released Nonparty 2’s acceptance. The head of the Seoul Immigration Control Office issued an order of departure to Nonparty 2 on the same day based on Article 68 of the Immigration Control Act.

2) On April 26, 2013, Nonparty 2 attended a court for the examination of the request for protective equipment on April 26, 2013, and testified in a criminal trial against Nonparty 1 while staying in the residence of Nonparty 1 without returning to the Central Joint Examination Center, and thereafter departing from China on July 3, 2013.

(g) Residents escaping from North Korea;

(2) Upon receipt of an application for protection under the main sentence of paragraph (1), the head of an overseas diplomatic mission, etc. that has received an application for protection from the Minister of Unification and the head of the National Intelligence Service shall, without delay, notify the Minister of Unification and the head of the National Intelligence Service of the result of temporary protection. (3) Upon receipt of notification under paragraph (2), the Minister of Unification shall make a decision on whether to provide protection following deliberation by the Council.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 14, 17 (including branch numbers in the case of provisional number), Eul evidence 4-1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Despite the right to interview and communicate with Nonparty 2, who were admitted to the Central Joint Interrogation Center and was investigated for violating the National Security Act, the Plaintiffs’ refusal to meet and communicate by the head of the NIS who is a public official and the NIS investigator’s refusal to meet and communicate with the Plaintiffs constitutes an unlawful performance of duties that infringe on the right to interview and communicate by the defense counsel. Thus, the Defendant is obliged to pay consolation money for mental suffering suffered by the Plaintiffs due to tort such as the head of the NIS, etc. pursuant to Article 2(

B. Defendant’s assertion

1) While the Director of the National Intelligence Service or the National Intelligence Service investigator conducted an investigation necessary to determine whether Nonparty 2 is a person eligible for protection under the North Korean Refugees Act at the Central Joint Examination Center, he/she did not initiate the investigation with respect to Nonparty 2, but did not intend to prosecute Nonparty 2 as Nonparty 1 and his/her accomplice at the time, so it cannot be deemed that Nonparty 2 was in the position of a suspect subject to the right of interview and communication by counsel.

2) Furthermore, even though Nonparty 2 informed the NIS investigator of the fact that he/she applied for an interview with the plaintiffs and sufficiently explained that he/she had the right to receive assistance from the defense counsel, he/she refused to meet with the defense counsel by having no intent to contact with the defense counsel. Thus, it cannot be deemed unlawful to allow the Plaintiffs’ request for interview according to the intent

3) Even if it is illegal to allow the Plaintiffs’ request for meeting, considering the legal nature of the Central Joint Examination Center, which is a temporary protective facility, and the characteristics of the legal status of Nonparty 2 as an applicant for protection under the North Korean Refugees Act, it is reasonable to deem that the NIS investigator at the time determined Nonparty 2 as an applicant for protection application under the North Korean Refugees Act or as a witness in a criminal case against Nonparty 1, and thus, there is a reasonable ground to deny the meeting of counsel. Furthermore, in the situation where Nonparty 2 expressed his/her intent not to contact with the counsel, it is difficult to deem that the objective duty of care to allow the application for meeting is difficult to be deemed to exist in the NIS investigator, by ascertaining what the genuine internal intent of Nonparty 2 is and by which Nonparty 2 expressed his/her intention not to contact with the counsel.

3. Existence of liability for damages

(a) Whether there is a suspect subject to the right to interview and communicate with a defense counsel;

1) The status of the suspect subject to the right of interview and communication by counsel is recognized when the investigation agency, even before undergoing the formal acceptance procedure, such as preparing a written statement of offender, considers the person subject to investigation as having been suspected of having committed a crime and practically commences the investigation (see Supreme Court Decisions 89Do648, Jun. 20, 1989; 2000Do2968, Oct. 26, 2001, etc.).

2) Comprehensively taking account of the facts acknowledged earlier, evidence and the overall purport of oral argument, etc., (i) the head of the National Security Act admitted Nonparty 2 to the Central Joint Examination Center is based on Article 7(3) of the North Korean Refugees Act, Article 12(1) of the Enforcement Decree of the same Act, proviso to Article 8(1) of the North Korean Refugees Act, etc.; (ii) the authority to investigate the applicants admitted to the Central Joint Examination Center granted by the head of the NIS is limited to investigations necessary for taking measures to ensure personal safety and decision on whether to protect them; and (iii) if the head of the NIS continues to conduct an investigation on the suspicion of violation of the National Security Act, the applicants were placed in the position of the suspect under criminal law, regardless of whether the investigation agency had gone through the formal process of repair; and (iii) it is doubtful that Nonparty 2 was unable to be subject to protection under the North Korean Refugees Act, including North Korean defectors’ temporary investigation, even after Nonparty 1’s application for protection.

B. As to the non-party 2's refusal to meet with his defense counsel

Comprehensively taking account of the overall purport of pleadings in the video and voice of the evidence Nos. 6 and 7-1 and 2-1 and 10-2 of the evidence Nos. 10, Nonparty 2 made a statement to the effect that, around February 5, 2013, at the Central Joint Examination Center, the Plaintiffs first applied for an interview with the defense counsel, Nonparty 2 did not want to have the defense counsel who requested an interview with the investigator in charge of the National Intelligence Service, and the National Intelligence Service recorded the above statement and the process of preparing the statement by Nonparty 2.

However, considering the following circumstances, it is difficult to view that Nonparty 1 and Nonparty 2 were able to have properly understood the meaning of meeting and communication right that could not be restricted by the National Intelligence Service’s disposition, etc., such as the Republic of Korea, upon entering the Republic of Korea at first time after Nonparty 2 entered the Republic of Korea. ② Nonparty 2 prepared several statements on suspicion of violation of the National Security Act, etc. during the confinement of the Central Joint Examination Center, and responded to the investigation by the National Intelligence Service’s summons 8 times more than 4 times. In addition, Nonparty 1 and Nonparty 2 did not want to have any outside communication right of the NIS’s defense counsel during the process of the investigation, and Nonparty 2 had been allowed to have been allowed to have an interview with the other party, and Nonparty 1 and Nonparty 2’s external contact with the other party during the process of the investigation.

C. Whether to recognize intention or negligence

In full view of the following circumstances revealed in the evidence and facts revealed above, it is reasonable to view that the head of the National Intelligence Service or the NIS investigator rejected the Plaintiffs’ application for interview for the investigation of Nonparty 1 while recognizing that Nonparty 2 is a suspect subject to the right to contact and communication with a defense counsel. Even if the head of the National Intelligence Service or the NIS investigator erroneously conducted the criminal status of Nonparty 2, the genuine intent of Nonparty 2, and the evaluation of the requirements for and restrictions on the right to contact and communication with a defense counsel, and thus did not allow a defense counsel, such measures cannot be deemed to have been taken after careful examination of the requirements for the right to contact and communication, or there are reasonable grounds that it is difficult to expect that they would be more than the method of processing, and thus, the performance of duties by the head

① The right to meet and communicate with the counsel is an essential right for guaranteeing the human rights of the suspect and preparing for defense, and it cannot be restricted by the disposition, etc. of the investigative agency, unless there is any limitation under the Acts and subordinate statutes, and it is recognized to the suspect who is the object of investigation under the criminal charge without relation to the formal procedure for the repair of cases, such as whether the suspect is admitted to the investigative agency, etc., is an established legal doctrine repeatedly and repeatedly declared by the judicial branch. There is no statute that restricts the defense counsel’s right to meet and communicate with North Korean defectors who have been admitted to the Central Joint Examination Center

② Around November 5, 2012, Nonparty 2 stated that he had already held Chinese nationality before escaping from the status of North Korea, and that he did not have acquired the North Korean nationality. As such, it is reasonable to view that the NIS investigator who heard the said statement to have continued to investigate Nonparty 2’s violation of the National Security Act, even though he was aware that Nonparty 2 could not be a person eligible for protection under the North Korean Refugees Act at that time, he/she had been aware that Nonparty 2 could not be a person eligible for protection under the North Korean Refugees Act.

(3) The statement of Nonparty 2 prepared in the course of investigation includes the right to refuse to make statements and the right to assistance of counsel entered in the protocol of interrogation of the suspect, and in light of this, it is reasonable to view that Nonparty 2, who is formally investigating Nonparty 2 as a witness, is in the position of the suspect or is able to receive such evaluation.

④ On February 5, 2013, Nonparty 2 prepared a written statement stating that the NIS investigator would not want to have a defense counsel in the presence to be kept by the NIS investigator. Around February 5, 2013, the NIS investigator drafted a written statement that “written confirmation of refusal to meet a defense counsel” and the NIS investigator repeatedly explained that he/she has the right to have a defense counsel by recording the preparation process separately. In light of the foregoing, it is reasonable to deem that at the time the NIS investigator was aware that Nonparty 2 was also the suspect who is the subject of the right to meet and communicate with the defense counsel.

⑤ It is reasonable to view that: (a) Nonparty 2’s preparation of Nonparty 2’s statement and written statement to the effect that Nonparty 2 would not want to have counsel; (b) the doubt that the truth is doubtful is being raised because the preparation of Nonparty 2’s statement and written statement was conducted under a very suppression of trial; and (c) the NIS investigator, who made a separate recording of the aforementioned written statement and written statement, could have more easily known than anyone, by allowing the interview between Nonparty 2 and his defense counsel; and (d) in such a case, the NIS investigator could easily resolve the doubt about Nonparty 2’s intention and the voluntariness of his statement by allowing the interview between Nonparty 2 and his defense counsel; and

D. Sub-determination

Therefore, the failure of the Director of the National Intelligence Service or the NIS investigator to permit the Plaintiffs’ request for meeting and communication to Nonparty 2, a defense counsel, constitutes an unlawful act that infringes on the right of counsel’s meeting and communication, and thus, the Defendant is liable for compensating the Plaintiffs for mental damages caused by the unlawful performance of duties such as the Director of the National Compensation Act.

4. Scope of damages.

The right of interview and communication of the plaintiffs infringed by the Director of the National Intelligence Service or National Intelligence Service investigator constitutes an essential right of counsel indispensable for guaranteeing the suspect's human rights and consultation on defense activities. The plaintiffs' right of meeting and communication infringed upon the right of meeting and communication, so that they could not grasp the contents and progress of the investigation against the non-party 2, and accordingly, they could not perform at all the duties of counsel for guaranteeing the suspect's human rights and defense rights.

Furthermore, in the case of the National Security Act that the National Intelligence Service was investigated by the National Intelligence Service, several issues were raised that point out whether due process, such as infringement of the right to interview and communication, were observed, and the judiciary’s judgment recognizing its illegality was not significant. Moreover, the controversy over the infringement of human rights against North Korean defectors detained in the Central Joint Examination Center, such as long-term acceptance and investigation of North Korean defectors and restrictions on the right to interview and communication with counsel or other persons, have been continuously raised. In such a situation, the head of the NIS or the NIS investigator, who is an investigator of the National Intelligence Service, was able to see that the Plaintiffs filed an application for interview with counsel to confirm the investigation of the North Korean defectors who were being pushed into contact with the outside and prevent the infringement of human rights, even in order to resolve the controversy and doubt about the observance of due process and the violation of human rights, should have been reviewed more seriously and thoroughly guaranteed the rights of Nonparty 2’s legal status and the requirements for the right to interview and communication, but the Plaintiffs did not permit the Plaintiffs’ application for interview once more than a month.

In full view of all the circumstances revealed in the pleadings, such as the frequency and period in which the right to interview and communication was infringed, the content and importance of the infringement legal interest, the degree of illegality and cause attributable thereto, and further, the motive and cause of the Defendant’s failure to permit meeting and communication to Nonparty 2, and the necessity to restrain and prevent the recurrence of similar cases, etc., the amount of consolation money that the Defendant is liable to compensate for to Plaintiff 1 shall be set at KRW 5 million against Plaintiff 1, and KRW 2 million against Plaintiff 2, 4, and 5, respectively.

5. Conclusion

Therefore, the Defendant is obligated to pay to Plaintiff 1 the amount of KRW 5 million, KRW 32 million, KRW 1 million, KRW 5 million, KRW 4, and KRW 5 million, KRW 5% per annum under the Civil Act from March 30, 2015 to September 18, 2015, the delivery date of a copy of the complaint of this case claimed by the Plaintiffs after the date of tort, and KRW 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

Therefore, the plaintiffs' claims against the defendant shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. Since the judgment of the court of first instance is just in this conclusion, it is dismissed in all of the appeals of the plaintiffs and the defendant. It is so decided as per Disposition.

Judges Kim Young-young (Presiding Judge)