Plaintiff 1 and one other (Attorney Seo Chang-il, Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Tae Tae-Gyeong et al., Counsel for the defendant-appellant)

September 18, 2014

1. The Defendant shall pay the Plaintiff 1 1,20,000 won, 800,000 won to Plaintiff 2, and 20% interest per annum from November 10, 201 to October 23, 2014, and 20% interest per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 90% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 20 million won, 10 million won to the plaintiff 2, and 5% per annum from November 10, 2011 to the delivery 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. Facts of recognition;

A. Plaintiff 1 is the joint representative of the ○○○○ Joint and several Staff, and Plaintiff 2 is the joint representative of the △△△ Joint and Several Staff.

B. At around 14:00 on November 10, 201, the Korea-U.S. Free Trade Organization Headquarters held a meeting called “Korea-U.S. Free Trade Agreement low-class national competition” in front of the Korea-do Industrial Bank.

C. However, from 15:30 to 15:30 after the completion of the above assembly, the participants of the above assembly attempted to enter the National Assembly and the Korea National Assembly by getting out of the front of the Industrial Bank, which is the place of the assembly, and going out of the front of the Industrial Bank, 4 tea lines and four tea lines in front of the Industrial Bank.

D. The chief of the police station of the Yeongdeungpo-gu Seoul District Police Station: (a) deemed that the above assembly clearly deviates from the scope of the initial report and prevented the general traffic; and (b) in the process, police officers launched a water distribution to participants of the demonstration including the plaintiffs from 15:46 to 16:16 (hereinafter “the instant water delivery act”); and (c) the specific process is as follows.

① A police officer, who belongs to the Defendant, requested the closure declaration to a socialist at around 15:37, and requested voluntary dispersion at around 15:42, using broadcasting cars at around 15:42, and the first dispersion order was issued at around 15:4, and the second dispersion order was issued at around 15:4, and the third dispersion order was issued at around 15:46, but the demonstration team, including the Plaintiffs, rejected the said dispersion order.

② At around 15:46, the police officer, who belongs to the Defendant, was able to kill approximately 12,00 liters of clear water on five occasions in total, such as one time of warning, one time of dives ( approximately 15 seconds around 15:47), one time of celebsium ( approximately 10 seconds around 15:59), three occasions of celebsium ( approximately 2 minutes around 15:52, around 16:01, around 3 minutes around 16:13, around 16:13, around 8 minutes, etc. (hereinafter “instant directsium”).

E. Due to the instant direct death by the police officers belonging to the Defendant, Plaintiff 1 suffered injury to the external wounded sacratic sacrife, and Plaintiff 2 suffered injury to the brain sacrine, etc.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5 (including attachment of provisional number; hereinafter the same shall apply), Eul evidence 1 to 6, and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Summary of the plaintiffs' assertion

The act of spreading water in this case is unlawful for the following reasons. ① The water capture used to dissolve an assembly and demonstration can cause serious harm to the life or body of the people. As such, important matters, such as specific grounds and criteria for use, should be directly stipulated in the law itself. The former Act on the Performance of Duties by Police Officers (amended by Act No. 5988, May 24, 199; hereinafter “former Act on the Performance of Duties by Police Officers”) does not provide any provision regarding the water capture in the former Regulations on the Management of Police Equipment (amended by Act No. 12600, May 20, 2014; hereinafter “former Regulations on the Performance of Duties by Police Officers”) that did not directly harm the people’s freedom to life or body, and thus, it can be seen as a violation of the former Regulations on the Management of Police Equipment (amended by the National Police Agency Directive No. 571, Sep. 30, 2009; hereinafter “former Regulations on the Management of Police Equipment”) that did not directly harm the people’s fundamental rights and guidelines.

Therefore, since the police officers belonging to the defendant suffered from mental suffering such as the plaintiffs' injury caused by the unlawful act of the physical shooting of this case, the defendant is obligated to pay consolation money to the plaintiff 1, 20 million won, 10 million won, and delay damages.

B. Relevant provisions

(1) former Act on the Performance of Duties by Police Officers

Article 10 (Use, etc. of Police Equipment) (1) Police officers may use police equipment in the course of performing their duties: Provided, That police officers shall provide necessary safety education and safety inspections for police equipment that may injure human life or body.

(2) The term "police equipment" referred to in paragraph (1) means equipment and devices necessary for performing police duties, such as weapons, police gear, tear agents and their launch devices, identification equipment, coast monitoring equipment, communications equipment, vehicles, vessels, aircraft, etc.

(3) Police equipment shall not be dangerous for another person's life or body by using it differently from its ordinary usage by arbitrarily altering police equipment or attaching any other equipment.

(4) The types of police equipment under the proviso to paragraph (1), standards for the use thereof, standards for safety education and safety inspection, etc. shall be prescribed by Presidential Decree.

(2) Regulations on the Guidelines for Using Police Equipment (amended by Presidential Decree No. 19563, Jun. 29, 2006; hereinafter “the Regulations on Police Equipment”).

The purpose of this Decree is to provide for the kinds of police equipment, standards for use, safety education, and standards for safety inspection, etc. that may cause harm to human life and body by national police officials in performing their duties under Article 10 (4) of the Act on the Performance of Duties by Police Officers.

Article 2 (Types of Police Equipment) The types of police equipment that may cause harm to human life or body (hereinafter referred to as "police equipment") shall be as follows:

1. Police gear: Swimming, ropes, ropes, return-on ropes, police batons, police batons, light batons, electronic percussion locks, shields, and electronic shields;

2. Weapons: Hand gun, rifle, machine gun (including machine gun; hereinafter the same shall apply), live ammunition, oil gas emission fraud, shock guns, three-wheeled gun guns, firecrackers, portable gun, water sort, explosives and swords;

3. Gas sprayers, tear gas sprayers, etc.: A neighboring gas sprayers, gas sprayers, gas sprayers (including those for the combined use of rubber bullets; hereinafter the same shall apply) and tear gas sprayers (including their launching devices; hereinafter the same shall apply);

4. Other equipment: Gas vehicles, flooding vehicles, special extinguishing vehicles, water circulation vehicles, crossbows, multi-purpose launch vehicles, and escapeing vehicle break equipment.

Article 3 (General Guidelines for Use of Police Equipment) Police equipment shall be used to the minimum extent necessary pursuant to ordinary directions.

Article 13 (Standards for Use of Gas Vehicles, Gambling Vehicles, Special Descence Vehicles, and Objects) (1) Where it is inevitable to restrict any danger and injury to another person or police officer's life or body, and any danger and injury to property or public facilities which may be caused by illegal assembly, demonstration, or riot incidents, a police officer may use gas vehicles or water can use it within the minimum necessary range, based on the judgment of a person in charge

(3) Where it is inevitable for a police officer to dissolve an illegal marine or demonstration or to stop a vessel that runs away in compliance with an order of stopping, the police officer may use the water distribution of a guard vessel within the minimum limit necessary at the discretion of the person in charge of the scene: Provided, That the police officer shall not directly launch a water distribution to people.

(3) Police equipment management rules

Article 1 (Purpose) The purpose of these Rules is to promote the rational operation and management of police equipment by prescribing matters necessary for the enforcement of the Commodity Management Act, the Act on the Performance of Duties by Police Officers, and the Regulations on the Standards, etc. for the Use of Police Equipment and prescribing other basic matters concerning the management of police equipment.

Article 97 (Special Management) (1) The head of each police agency shall specially manage equipment that might cause harm to human life and body, such as special extinguishment vehicles, gas vehicles, and water distribution for assembly and demonstration management.

(2) The following safety rules shall be observed in using the equipment prescribed in paragraph (1):

1. (Omission)

2. (Omission)

3. Water distribution for the control of assembly and demonstration;

(a) Voluntary dispersion shall be encouraged through broadcasting of warning and warning water before using water for the management of an assembly or demonstration;

(b) The distance, pressure, etc. of the demonstration team at the time of the use of water for the management of assembly and demonstration shall be the minimum necessary for the management of assembly and demonstration in consideration of all on-site situations

(c) Matters not prescribed in this Chapter concerning the management and operation of the water distribution for the management of assemblies and demonstrations shall be in accordance with the Water Distribution Operating Guidelines.

(4) Water circulation operating guidelines

Part I Summary

1.Purpose

The purpose of these guidelines is to prescribe matters concerning the requirements and procedures for the use of water ropes for assembly and demonstration management under the Act on the Performance of Duties by Police Officers, the Regulations on the Criteria for the Use of Police Equipment, etc., and the Regulations on the Management of Police Equipment, etc., and the methods of killing and taking methods

2. Definitions

(a)The water distribution for the management of an assembly or demonstration (hereinafter referred to as "water distribution") means the equipment with a special motor vehicle, among the equipment of a train, that shoots high voltages for the purpose of dissolution in the military;

Part II Use of Water Pots

1. Omitted;

2. General requirements for water captures;

(a) Water captures shall be used in any of the following cases:

1) Where it is necessary to suppress any harm to the life or body of another person or police officer due to an illegal assembly, demonstration, or riot;

2) Where it is necessary to suppress any danger to another person’s property, public facilities, etc. due to an illegal assembly, demonstration or requirement situation.

(iii) where it is necessary for the arrest and escape of an offender, protection of his or another person’s life and body, suppression of resistance to the performance of official duties;

(iv) necessary to suppress fires or prevent decentralization, etc.

3. Methods of distributing water at the assembly or demonstration site;

(a)in the case of using a basic procedural distribution, first warns that the material distribution will be used, give a warning that the material distribution will be used, and then shoots after giving a warning in small quantities;

경고방송 ⇒ 경고살수 ⇒ 본격살수(분산·곡사·직사살수)

(b) Slaughtering method;

(i) Dispersion;

A) The Guidelines for Water Slaughter: Corresponding angles shall be at least 45∑s, and water spolyms shall be at least 2,500 mp (10bar).

(b) Requirements for use: Where demonstration costs are illegally occupied and not dissolved;

(ii) The number of grains; and

(a)The Guidelines for Slaughtering: the water line shall be made in the form of a water line to the public, and the water intensity shall be less than 2,500 (10bar).

(b)Requirements for use: Where the costs of demonstration do not possess violent demonstration articles but intrudes polysates or attempts to commit unlawful acts or enter facilities;

(iii)the number of direct death;

A) The Guidelines for Slaughtering: The water line shall be in the form of a straight line, and the water line shall be 3,000 mp (15 mp) or less in the water intensity.

(b) Requirements for use:

(a) Where a person illegally occupies a road, etc. obstructs the passage or traffic flow of the general public and does not comply with an order to dissolve the police;

(2) In the event of an assault by a police officer or a police officer’s body or fighting on a police officer’s body, such as a hack pipe, bamboo sprink, salt spack

(3) Doing to dypate, damage, or fire by polyslass such as tea walls;

(iv) the mixed water of the largest dust;

(v) the mixture of salt;

(c) Cautions for the use of water;

1) If a water distribution operating personnel receives a water distribution order, he/she shall re-examine the time, method, and scope of the water distribution from the commander and use it.

(ii) take measures to ensure that children, persons with disabilities, women, and ordinary people, other than participants in demonstration, can move to safety areas by providing warning broadcasting informing that water captures and water captures will be used.

3) The voluntary dispersion of the demonstration team is encouraged by means of warning water prior to the suicide, and the damage of citizens is reduced by isolation of the general public and the participants of the demonstration.

4) After mixing the maximum dust and salt rates, the site shall be cleaned to minimize inconvenience for citizens.

5) When a heading is carried out, she shall be left and used at the chest or lower level in consideration of safety.

6)In the event of the capture, safe use shall be made at a distance specified in the water-satury, taking into account all the relevant site conditions, such as the distance between water captures and demonstration teams;

* The example of the water-satury (in the case of ordinary demonstration) according to the distance

- Where the demonstration cost is within 10 meters, 1,000 mp (3bar)

- Where the demonstration cost is 15 meters away, 1,500 rp (5bar)

- Where the demonstration cost is 20 meters away, 2,000 rp (7bar)

Not more than 10

(5) The Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007)

Article 20 (Dissolution of Assembly or Demonstration) (1) With respect to an assembly or demonstration falling under any of the following subparagraphs, the head of the competent police authority may demand voluntary dispersion within a reasonable time, and may issue an order of dispersion in the absence of such demand:

1. Any assembly or demonstration in violation of Article 5 (1), the main sentence of Article 10, or Article 11;

2. Any assembly or demonstration which has not been reported under Article 6 (1), or which is prohibited under Article 8 or 12;

3. An assembly or demonstration which clearly causes direct danger to the maintenance of order, such as traffic flow, in violation of the restrictions under Article 8 (3), the proviso to Article 10, or the conditions under Article 12;

4. Any assembly or demonstration, the conclusion of which has been declared under Article 16 (3).

5. An assembly or demonstration in which order cannot be maintained due to an act falling under any subparagraph of Article 16 (4).

(2) When an assembly or demonstration is ordered to be dissolved under paragraph (1), all participants shall, without delay, dissolve the assembly or demonstration.

(3) Necessary matters concerning demand for voluntary dispersion, notification of dispersion order, etc. under paragraph (1) shall be prescribed by Presidential Decree.

C. Determination

(1) Whether the water distribution use violates the principle of statutory reservation

(A) The Constitution is one of the basic principles of the rule of law, and the rule of law is one of the core contents of the legislative reservation that the legal basis of the formal law enacted by the National Assembly is required (see Constitutional Court Order 2003Hun-Ma87, Mar. 31, 2005). The principle of statutory reservation does not refer only to the regulation based on the law, but also to the regulation based on the law. Thus, the form of restriction on fundamental rights does not necessarily require the form of the law, and if it satisfies the specification and clarity of the delegation as required by Article 75 of the Constitution based on the law, it can also be restricted by the delegation legislation (see Constitutional Court Order 2003Hun-Ma289, Feb. 24, 2005).

(B) Article 10 of the former Act on the Performance of Duties by Police Officers provides for the use, etc. of police equipment and delegates specific types of police equipment to the Presidential Decree. Accordingly, Article 2 Subparag. 4 of the former Act on the Performance of Duties by Police Officers provides that “If it is inevitable to prevent danger and injury to life or body of others or police officers that may arise due to illegal assembly, demonstration, or requirement, and to restrain the risk of property and public facilities, the police officer may use gas or scams to the minimum extent necessary at the discretion of the person in charge of the site.” Thus, Article 10 of the former Act on the Performance of Duties by Police Officers specifically provides for basic matters regarding the contents and scope of police equipment stipulated by Presidential Decree from the pertinent Act on the performance of Duties by Police Officers. Since Article 2 Subparag. 4 of the former Act on the Performance of Duties by Police Officers provides for the kind of equipment within the delegated scope as one of other equipment, it cannot be seen that the Plaintiffs’ act of using water can not be seen as violating the comprehensive provision of Article 10 of the former Act on the Performance of Duties by Police Officers.

(2) Whether the number of direct death constitutes a violation of the excessive prohibition principle

In order to protect the freedom and rights of the people and to maintain public order in society, police officers need to control illegal assemblies and demonstrations, which is one of the police equipment that can rapidly and efficiently control the proliferation of illegal assemblies and demonstrations that are large gatherings, and the water distribution operation guidelines provide detailed requirements for the use of water in order to prevent infringement of fundamental rights by using water. In particular, in the case of direct slaughter, the requirements are more strict and strict and the requirement of the use of water and the requirements for the use of water to prevent infringement of fundamental rights by using water. In particular, in the case of direct slaughter, the requirement is more strict and “in a case where the passage or traffic of the general public is obstructed and the police does not comply with the dispersion order of the police,” “in the case of possession of violent demonstration, such as hacks, bamboo, salt, stones, etc., or a police officer’s assault or physical safety,” “in the case of fighting or fighting with police officers, etc.,” the water can not be seen as violating the principle of prohibition of excessive shooting.

(3) Whether the plaintiffs' face directly left the face part of the plaintiffs can be seen as a death.

There is no evidence to prove that the police officers belonging to the defendant directly match the face part of the plaintiffs, and instead, according to the statements or images of Gap evidence 2-9, Eul evidence 4, Eul evidence 6-1, and Eul evidence 6-2, it can be acknowledged that the plaintiff attempted to transfer the face to the face part of the plaintiffs when the water supply is taken toward the plaintiffs, and that the water supply is fit for the water supply on the face part of the plaintiffs. Therefore, the above assertion by the plaintiffs is without merit.

(4) Whether an excessive death was made without a lawful dispersion order

(A) According to the water distribution guidelines, “the cases where roads, etc. are occupied without permission to obstruct the passage of the general public or the traffic flow and the order of dispersion by the police is not complied with” as the requirements for water evacuation. However, in the dispersion order under the Act, the purpose of the dispersion order system is to properly harmonize the guarantee of the right to assembly and demonstration and the public peace and order by guaranteeing lawful assembly and demonstration to the maximum extent possible and protecting the people from unlawful demonstration. Therefore, in order to order the dissolution of an assembly and demonstration already in progress, it is necessary for a state agency to specifically present legal grounds for ordering dissolution in order to order the dissolution of an assembly and demonstration, taking into account the fact that it is necessary to give specific notice as to whether the cause for dissolution falls under any of the subparagraphs of Article 20(1) of the Act (see Supreme Court Decision 2011Do7193, Feb. 9, 2012

In the case of the instant assembly, the police officer belonging to the Defendant only broadcast without notice of specific grounds under the Act, such as “an assembly or demonstration which clearly deviates from the scope of the reported purpose, date, time, place, method, etc., and is unable to maintain order,” and there is no evidence to acknowledge that the instant assembly was lawful dispersion order (see Seoul High Court Decisions 2012No1481, Aug. 23, 2012; 2012Do10678, Feb. 14, 2013).

Therefore, the number of direct death in this case was done without going through lawful dispersion order procedure, and it violated the above water distribution guidelines.

(B) If it is inevitable to suppress any danger and injury to the life or body of another person or police officer that may arise from an unlawful assembly, demonstration, or riot, and any danger and injury to property and public facilities, a police officer may use a sprink to the necessary minimum extent upon the judgment of the person in charge of the scene (Article 13(1) of the Police Equipment Regulations).

In light of the following circumstances acknowledged by the purport of Gap evidence Nos. 2 and Eul evidence Nos. 6 and Eul evidence Nos. 6, namely, in this case, the participant of the demonstration had been more than 900 persons, but the distance from 170 to 200 meters was not set. There was no circumstance to deem that the participant of the demonstration had exercised active attack, violence, etc. in addition to having attempted to proceed to the National Assembly by using microphones and spackers, and there was no circumstance to deem that the participant of the demonstration had exercised active attack or violence, etc., and there was no other dangerous things or weapons than the diskettes, prior to performing the act of spreading the water of this case, there was no circumstance to deem that there was a direct danger to the legal interest of others or public safety and order.

However, as seen earlier, the police officer belonging to the Defendant’s police officer did so from 15:47 to 16:16 of the time when the participants in the demonstration began to drive on the road, and did not only more than 10 minutes, and did so promptly from 15:47 to 16.16. The police officer’s police officer carried out water capture led to the decentralization of water, which led to the divers of water, and the diversing of water. At around 15:46, the police officer carried out one time of a single warning after the diversing of water (15:47 to 15:47), one time of a diversics (10 seconds around 15:49 to 15:52 to 3 minutes, 16:13 minutes, 13 minutes, and 8 minutes) and three times in total during the process of causing death and bodily injury to the Plaintiffs. As seen earlier, the police officer carried out the divers’ life and physical injury.

In light of these circumstances, even if the water of this case was conducted for the purpose of preventing road traffic interference and maintaining order, it seems that the water of this case was conducted beyond the minimum scope necessary for the management of assembly and demonstration.

(5) Sub-decisions

Therefore, the number of direct death in this case is illegal as it goes beyond the necessary minimum limit without a lawful dispersion order, and the defendant is obliged to pay consolation money to the plaintiffs who suffered emotional distress due to the injury.

3. Scope of consolation money

Taking into account all the circumstances revealed in the arguments of this case, such as the Plaintiffs’ respective parts and degree of injury, the background leading up to the launch of the water distribution of this case, the background leading up to the Defendant’s police officer’s issuance of warning and the number of warnings, etc., but attempted to resist the Plaintiffs’ refusal to comply with this, and rather to go to the water distribution on face and head of the body, etc., it is appropriate to determine the amount of KRW 1.2 million as consolation money for Plaintiff 1 and KRW 8 million as consolation money for Plaintiff 2.

Therefore, the Defendant is obligated to pay to Plaintiff 1 1,20,000 won, 80,000 won to Plaintiff 2, and damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from November 10, 2011 to October 23, 2014, which is the sentencing date of the instant case, and 20% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges full-time lodging