(영문) 서울고등법원 2016.4.8.선고 2015나2071465 판결

1. The part against the defendant among the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revoked part are dismissed.

2. The plaintiff A's incidental appeal is dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of appeal and incidental appeal

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from the date of closing argument of the first instance court of this case to the date of sentencing of the first instance court of this case and 20% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The same shall apply to the order.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the Plaintiff, which ordered additional payment, shall be revoked. The Defendant shall pay to the Plaintiff 381,443,684 won with 5% interest per annum from the date of closing argument of the court of first instance to the date of rendering a judgment of the court of first instance, and 20% interest per annum from the next day to the date of full payment.

Reasons

1. Quotation of the first instance judgment

The reasons are as follows: “1. Basic Facts” and “2. The Defendant’s judgment on the Defendant’s principal safety defense”: ① from the fourth bottom of the first instance judgment to the third part of the third part of the first instance judgment, the “Immediate appeal is currently pending at the Supreme Court (Supreme Court Decision 2014Mo160).” The subsequent decision became final and conclusive in accordance with the decision of dismissal of reappeal (Supreme Court Order 2014Mo160 Decided April 11, 2014), and ② “ June 30, 2003” in the fifth eightth part of the first instance judgment to “ June 23, 2003” are as stated in the corresponding part of the first instance judgment, and it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Whether liability for damages arises;

A. The plaintiffs' assertion

An act committed by a public official belonging to the defendant, who was arrested and prosecuted the plaintiff A pursuant to the Emergency Decree No. 9, which is essentially infringed on the fundamental rights of the people guaranteed by the Constitution, and thereby convicted the plaintiff A, and then detained the defendant for about 166 days of conviction, constitutes a tort by intention or negligence. Even after the release of the plaintiff A, the case was subject to surveillance or inspection by an investigative agency, etc. due to the retrial judgment, etc. The father, father, E, mother, the plaintiff B, C, and D, who are his family members, were also suffering from mental distress. Accordingly, the defendant is liable to compensate the damages suffered by the plaintiffs.

B. Determination

1) In a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared unconstitutional or null and void, even if an investigation was initiated based on the relevant law before the law was declared unconstitutional and a public prosecution was declared guilty, such circumstance alone alone cannot be deemed as constituting a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act and thus, the State’s liability for damages arises

Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as “new Constitution”) which provides the basis for the issuance of an emergency measure for the protection of national safety and public order (hereinafter referred to as “emergency measure No. 9”) not only lack of the requirements per se as stipulated in Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980), but also violates the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, right of residence, right of petition, and academic freedom as stipulated in the current Constitution, and thus infringing on the fundamental rights of the people (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013). However, if an emergency measure is being implemented at the time, it is difficult to view the defendant or a judge who has declared a judgment of conviction as an unlawful act under Article 53(1) and 9(2) of the Constitution.

On the other hand, in a case where a public prosecution was filed based on evidence collected by a government agency in the course of investigation and a final judgment of conviction was made, but the case of a defendant under the latter part of Article 325 of the Criminal Procedure Act was "when there is no proof of facts constituting a crime" and the judgment of innocence was finalized, the State's liability for damages caused by the arrest, detention, and reinstatement

However, in a case where a judgment of innocence under the former part of Article 325 of the Criminal Procedure Act (amended by Act No. 9 of the Emergency Decree No. 9), which was applied to a defendant in a retrial procedure against a conviction of a violation of Emergency Decree, becomes final and conclusive on the grounds that the said provision is unconstitutional or invalid, barring any other special circumstance, it cannot be deemed that the State’s liability for damages is recognized on the grounds that the act committed by the State, which was committed during the investigation process, was not immediately deemed to constitute a State’s tort in light of the aforementioned legal principles. In such a case, it is difficult to deem that the State’s liability for damages was recognized on the grounds that the State’s act committed by the State, such as arrest, detention, and conviction, committed by the State during the investigation process (see, e.g., Supreme Court Decision 201Da17279, supra). Accordingly, the State’s liability for damages, including the Defendant, which had been found unconstitutional and void, should be determined by examining the causal relationship between the State’s act and conviction 2, etc.

2) As seen earlier, even if the judgment of innocence was finalized pursuant to the former part of Article 325 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9 was unconstitutional and invalid in the retrial procedure for the conviction of a violation of Emergency Measure No. 9, barring any other special circumstance, it cannot be deemed that the Defendant was convicted of having committed an unlawful act by the State agency, which was in the course of the investigation, and, barring any other special circumstance, there was no evidence to deem that there was a high probability of having been a cause of innocence under the latter part of Article 325 of the Criminal Procedure Act if there was no cause of innocence under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9. Thus, the circumstance that the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act was finalized on the ground that Emergency Measure No. 9 was unconstitutional and invalid

3) Therefore, the claim of this case by the prior plaintiffs on a different premise is without merit without further review as to the remainder.

3. Conclusion

Therefore, all of the plaintiffs' claims in this case must be dismissed. Since the judgment of the court of first instance is unfair with different conclusions, it is revoked by the defendant's appeal and all of the plaintiffs' claims are dismissed. The incidental appeal of the plaintiff A is dismissed as it is without merit. It is so decided as per Disposition.