In a case where Party A was arrested for 37 days after the custody warrant was issued and executed without a warrant by an investigator in the Central Information Department, and was indicted as a charge of violating the National Security Act, etc. and was detained for a 12-year period after being convicted of committing a violation of the National Security Act, etc., and sought compensation for damages against Party A and his/her family members on the ground that the voluntariness of confession was doubtful in a retrial case, the case holding that the State has a duty to compensate for damages

In a case where Gap was investigated by illegal confinement for 37 days after a warrant of detention was issued and executed by the investigator of the Central Information Department without a warrant, and was detained as a charge of violating the National Security Act, etc., and was detained for 12 years after having received a final judgment of conviction. In a new trial case, the court held that Gap and his family members were liable to compensate for damages since Gap and their families were left unattended for a long period of time by failing to restore the honor of Gap and their families and by making efforts to compensate for damages, since the confession in the course of investigation and public trial was deemed to be due to the illegal confinement and harsh treatment by the investigator of the Central Information Department, which could have been suspected of argument of confession in the new trial case, and on the basis of these confessions, the judgment of conviction against Gap was finalized.

Article 2 (1) of the State Compensation Act

Plaintiff 1 and two others (Law Firm Lee & Lee, Attorneys Kim LLC-won, Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Han, Attorney Choi Woo-woo, Counsel for defendant-appellant)

June 23, 2017

1. The Defendant pays to Plaintiff 1 6,923,076 won to Plaintiff 2, and 4,615,384 won to Plaintiff 3, and 5% per annum from June 23, 2017 to July 21, 2017, and 15% per annum from the next day to the date of full payment.

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

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 50 million won, 23,070,000 won to the plaintiff 2, 15,380,000 won, and 15,380,000 won to the plaintiff 3 with 5% per annum from the day of the closing of the argument of this case to the day of the pronouncement of this judgment, and 15% per annum from the next day to the day of full payment.

1. Basic facts

(a) Illegal arrest and investigation;

(1) On August 31, 1970, Plaintiff 1 was residing in Japan after departure from Korea, and the period of stay expired, and returned to Korea on September 9, 197.

(2) On September 9, 197, Plaintiff 1 was investigated under illegal confinement for 37 days from the time when a detention warrant was issued and executed on October 15, 197, by the Central Information Department investigator without a warrant.

(3) The prosecutor charged the Plaintiff 1 with the charge of violating the National Security Act, violation of the public law and violation of the public interest in general (hereinafter “instant charges”) as to the facts stated in the facts charged in the attached Form of the crime of false interest (hereinafter “instant charges”).

(b) Judgment of conviction and execution of sentence;

(1) On April 7, 1978, the Seoul Criminal Court convicted the Defendant of all the charges and sentenced the Defendant to 20 years of imprisonment and suspension of qualifications for 15 years.

(2) With respect to the above judgment, both Plaintiff 1 and the Prosecutor appealeded to Seoul High Court 78No639, and the above court sentenced Plaintiff 1 to imprisonment with prison labor for 15 years and suspension of qualifications for 15 years (hereinafter “the instant judgment”) on July 28, 1978.

(3) Accordingly, Plaintiff 1 appealed to the Supreme Court 78Do2266, but on October 31, 1978, the appeal was dismissed and the judgment of this case became final and conclusive.

(4) According to the instant judgment, Plaintiff 1 was provisionally released from Gwangju prison in 1989 after approximately 12 years and 3 months were returned to the Gwangju prison. On November 3, 1992, the remaining term of the punishment was imposed.

C. Judgment of retrial

(1) On October 22, 2010, Plaintiff 1 filed a petition for review of the instant judgment with Seoul High Court No. 2010No62, and the said court recognized that the investigator of the Central Information Department who investigated the instant case committed a crime of unlawful arrest and confinement against Plaintiff 1 without the Plaintiff 1’s warrant was illegal. On the premise of the foregoing, the said court rendered a decision of commencing a retrial on May 25, 2012 on the ground that it is obvious that the five-year statute of limitations has expired for the crime of illegal arrest and confinement against Plaintiff 1 by the investigators of the Central Information Department, on the premise that it is difficult to obtain a final judgment under Article 422 of the Criminal Procedure Act, on the ground that there was a ground for retrial under Article 420 subparag. 7 of the same Act.

(2) On July 19, 2012, the Seoul High Court (Seoul High Court Decision 2010No. 62), which commenced thereafter, found Defendant 1 guilty of all the facts charged on the grounds that Plaintiff 1’s entire confessions at the prosecution and confessions at the court of first instance were recognized, and that there are corroborating evidence on this, and found Defendant 1’s assertion of unfair sentencing, and the Seoul High Criminal Court reversed Defendant 77Gohap835 and sentenced Defendant 15 years of imprisonment and suspension of qualification.

(3) As to the above judgment, Plaintiff 1 appealed to the Supreme Court Decision 2012Do9879. On September 10, 2015, the above court reversed and remanded the Seoul High Court Decision 2010No62 Decided the ground that it is difficult to recognize the admissibility of evidence on the grounds that: (a) the confession made by Plaintiff 1 at the prosecutor's office and the court of first instance on September 10, 2015 by the said Plaintiff was made in the state of illegal confinement with the central information department, and the confession was made in the state of voluntariness in the central information department;

(4) In the new trial case of Seoul High Court 2015No. 237, the above court reversed the judgment of Seoul District Court 77 Gohap835, and sentenced Plaintiff 1 not guilty. The prosecutor appealed against the said judgment to the Supreme Court 2015Do18068, but the prosecutor dismissed the appeal on June 9, 2016, and the judgment of innocence against Plaintiff 1 became final and conclusive.

D. Family relations, etc. of the plaintiffs

(1) The deceased non-party 1 is the plaintiff 1's fault. The deceased non-party 1 died on September 30, 2014. The deceased non-party 2 and his heir, who is the plaintiff 2 and his wife, are the plaintiff 2, the non-party 3, the non-party 4, and the non-party 5.

(2) From October 197 to November 1 of the same year, Nonparty 1 was investigated by an investigative agency as a witness in relation to the instant case.

(e) Criminal compensation;

In relation to the instant case on June 21, 2016, Plaintiff 1 filed a claim for criminal compensation with Seoul High Court (Seoul High Court 2016co51). On April 11, 2017, the said court decided to pay KRW 897,800,000 for criminal compensation and KRW 4,50,000 for criminal expenses compensation. Plaintiff 1 received the said compensation on May 29, 2017.

[Reasons for Recognition] A.1 to 7 Facts without dispute, each entry (including each number), significant facts in this court, the purport of the whole pleadings

2. The plaintiffs' assertion

The Defendant is obligated to pay 50,00,000 won for damages to Plaintiff 1 (= criminal compensation of KRW 897,800,000 for 1,397,800,000 for consolation money of Plaintiff 1), and 23,070,000 for Plaintiff 2 to Plaintiff 2 (=the deceased Nonparty 1’s consolation money of KRW 1,00,000 for consolation money of KRW 1,00,000 for legal inheritance x 3/13 for legal inheritance x 15,380,00 for the deceased Nonparty 1’s consolation money of KRW 100,00 for consolation money of KRW 1,00 for 10,000 for consolation money of Party 1 x 2/13 for legal inheritance).

3. Determination

(a) Occurrence of liability for damages;

(1) Article 8 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980) provides that all citizens shall have dignity and value as human beings, and the State shall have the duty to confirm and guarantee the fundamental human rights of an individual. Article 10 of the former Constitution provides for personal liberty and the arrest and detention by law, the principle of no punishment without law and due process (Paragraph 1), the prohibition of advisers and the right to refuse to make statements disadvantageous to them (Paragraph 2), the arrest and detention by a warrant issued by a judge (Paragraph 3), the right to receive assistance of counsel (Paragraph 4). Thus, the defendant shall not engage in physical and mental harm by using direct and indirect means such as adviser or intimidation to obtain false confession from citizens, and the defendant must comply with due process of investigation, such as arrest and detention of the people only by warrant, and guarantee due process of law.

(2) In full view of the purport of the entire pleadings as to the statement No. 2-4 of the evidence No. 2, the following facts are recognized.

① Around September 197, Plaintiff 1 led to the confession of all the facts charged in the instant case to the third-time interrogation of a suspect in the Central Information Book, which was conducted without a warrant, in a state of illegal confinement by investigators. After issuing a warrant, the Plaintiff 1 made a full confession during the interrogation of a suspect in the Central Information Book on October 18, 197 and the 28th day of the same month. From November 8 to the 16th day of the same year, the Plaintiff 1 made a statement to the effect that the entire indictment was led to the confession of the entire facts charged even in the interrogation of a suspect in the prosecution that was conducted three times in the same month without a warrant.

② On January 27, 1978, Plaintiff 1 denied part of the facts charged in the instant case and made a statement to the effect that part of the confession was made during the first instance trial of the first instance court (Seoul Criminal Court 77Dahap835, Seoul Criminal Court) on January 27, 1978, and denied all the facts charged in the instant case at the appellate court (78No639).

③ On June 19, 1978, Plaintiff 1 stated in the statement of reasons for appeal that “The Defendant was working in the office of the Korean Federation of the Korean Federation of the Korean Federation of the Korean Federation of the Korean Federation of the Korean Vessel that he was under the investigation in the Central Information Department,” and stated that he did not believe that he went to North Korea without going through North Korea, and that he went to North Korea, “In the underground room and underground room”, the Defendant passed through the snow and her eye. The Defendant was frightd for four days, and her body was frighted and frighted to go to the underground room. The Defendant stated that she went to North Korea.” The appellate court stated that “The Defendant was moving to the Central Information Department of the Korean Government of the Korean Government of the Korean Republic of Korea, the Defendant was frighted, and that she did not go to North Korea, and made a false statement in the appellate court.”

④ The Seoul detention house officer’s thought trend card for prisoners in prison is written to the effect that it is “a letter denying this case’s question” (see November 29, 1977), “ he himself is an erroneous fact” (see January 28, 1978), and “an uncomfortable fact. When time flows, the truth is revealed. The truth is revealed. It is believed only by the judiciary (see February 23, 1978), “I will see that I will see that I will come up only a day and come up only by day” (see March 30, 1978).

⑤ 원고 1은 과거사위원회 조사에서, “제가 조사를 마치고 지나가는 이야기로 일본에서 조총련 집에서 취직하러 갔다가 도망 나온 적이 있다고 말하자, 그때부터 저의 운명이 바뀌게 되었습니다. 저를 간첩으로 몰아가기 시작하면서 부인하면 각목으로 엉덩이를 때려서 멍이 들기도 하였습니다. 하룻밤을 잠을 재우지 않고 조사를 하면서 자로 손등을 때리고, 볼펜을 손가락 사이에 끼운 후 비틀고, 각목을 끼우고 무릎을 꿇고 앉게 하였습니다. 그리고 중앙정보부 수사관이 지하에서 전화해서 고문준비가 되었는지를 물어보고, 지하실에 가서 고문을 할 것처럼 하면서 고문을 받으나 안 받으나 나중에는 다 불게 된다고 말하기에 고문받고 병신이 되는 것보다 차라리 거짓말을 하고 사는 것이 나을 것 같은 생각이 들어서 거짓말을 하게 된 것입니다. 옆방에서 비명소리가 들리기도 하여 너무 무서웠습니다.”, “검찰청에는 가지 않았고, 구치소로 검사와 검찰수사관이 와서 조사를 하였습니다. 중앙정보부 직원이 (검찰 조사) 전날 저에게, ‘검찰도 중정과 같은 기관이니 모든 것을 인정하라’고 하여서 저는 의심하지 않고 시키는 대로 하였습니다.”라고 진술하였다.

6) Nonparty 6, a public defender of Plaintiff 1, met with the Defendant after the date of the first public trial, and heard his statements and arguments, and the Defendant was released from the Central Information Department despite the absence of any advice, intimidation, or interview. The prosecutor made a false confession that he left the Republic of Korea in spite of the absence of any fact that he had left the Republic of Korea. If he made a statement different from that of his statement in the Information Book due to the seizure and seizure, the prosecutor also made a statement to the effect that “the person who was a public defender of Plaintiff 1, made a statement in the Central Information Board, i.e., why he was flick and so on.” At that time, the person who was a public defender of this case appealed against the Defendant, who was subject to adviser, intimidation, and interview, and submitted a written statement to the Central Information Board, stating that “The Defendant’s assertion was no more than one.”

7) At the time of the investigation of the Plaintiff 1, Nonparty 7 of the Central Information Division at the time of the investigation of the past History Committee stated, “In ordinary cases, the investigation team would normally take two to three hours to induce the suspect to confession through conference or intimidation if the suspect denies the suspected fact,” “In the first time, the head of the group outside the small and medium enterprise 8 team would be exempted from punishment, and the head of the group would be subject to strict compensation even if he/she acts in the country, and the head of the group would not be subject to punishment if he/she confessions all of the counter-espionage cases,” and “(in relation to the investigation conducted in the Seoul Information Center of the Public Prosecutor’s Office, the investigator of the Central Information Division shall continue to manage the counter-espionage cases in the Central Information Division after sending it to the public prosecutor, and shall also prepare and submit a statement to the effect that “the head of the group outside the small and medium enterprise 8 team would be able to receive settlement money (which would be adequate)” in relation to the meaning of the above “compensation”.

④ At the time of involvement in the investigation of Plaintiff 1, Nonparty 9 of the Central Information Division stated, in the course of the investigation by the past history committee, that “If Nonparty 8, who was only Nonparty 8, was aware of the confession of the Defendant, Nonparty 9 of the Central Information Board stated, it would be deemed that “in the event that Nonparty 8, who was the only day, had been aware of the Defendant, would have been aware of the fact that: (a) provided information to the upper sponser; (b) attempted to arrest the upper sp

9) Nonparty 7 and Nonparty 9 denied at the time that they did not have any adviser or cruel act against the Defendant. However, the “person who was led to a confession of the Defendant” stated to the effect that he was not his own, but others (the Defendant was examined five times) and that he was not accurately aware of how the “other person” was led to the confession of the Defendant.

(10) At the time of involvement in the investigation of Plaintiff 1, Nonparty 10, the prosecution clerk, stated in the past history committee’s investigation that “In 1977, the prosecutor’s office, as well as the prosecutor’s office, has been permanently stationed in various government agencies, and even the court has exercised its influence in advance. In the case of a espionage case, the prosecutor’s office and the court almost all recognized it by conducting a basic investigation by the Central Information Department.”

1) On October 15, 197, Plaintiff 1 was admitted to the Seoul detention center. On October 24, 1977, the investigator Nonparty 11 (tentative) and one other, who was the investigator of the Central Information Department, issued a public prosecution against Plaintiff 1, and the investigator Nonparty 12 (provisional) of the Central Information Department, who was the investigator of the Central Information Division, posted his interview to the Seoul detention center, respectively.

(3) According to the above facts, Plaintiff 1 denied the facts charged in the first time, and there was no particular proviso to recognize the facts charged in the instant case before Plaintiff 1’s statement, and even if there was no clear evidence to support the facts charged in the instant case other than Plaintiff 1’s statement, the confession of the entire facts charged in the course of investigation and public trial by the investigator in the Central Information Department belonging to the Defendant was deemed to have been caused by illegal confinement and cruel treatment by the investigators in the Central Information Department belonging to the Defendant, and based on such confession, the judgment of this case against Plaintiff 1 was finalized.

As above, in violation of the duty to protect the fundamental human rights of the people, the investigators of the Central Information Department belonging to the defendant committed an illegal act, such as illegally imprisoning the plaintiff 1 by using state power. The defendant, who is his employer, left alone for a long period of time without making efforts to restore the honor of the plaintiff 1 and his family members and compensate for damage. It can be sufficiently recognized that the plaintiff and his family members suffered from such personal, economic, and social disadvantage.

Therefore, the defendant is liable to compensate for damages suffered by the plaintiff 1 and the deceased non-party 1 due to the above tort.

(b) Scope of liability for damages (amount recognized as fraudulent materials);

(1) The calculation standard and amount of consolation money

Considering the above evidence and the following circumstances revealed by the facts of recognition, it is reasonable to separately determine the consolation money of Plaintiff 1 as KRW 1,000,000,000, and the consolation money of Nonparty 1, the deceased’s family member, as KRW 30,00,00, respectively.

① Plaintiff 1 was detained by a State agency in a state of illegal confinement, was convicted of conviction on the basis of a false confession made in such state, and was detained for about 12 years and 3 months until the release. In light of the empirical rule, it is obvious that Plaintiff 1 was detained not only at the time of detention but also at the time of detention due to an investigation by the State agency and a normal tort, but also at the time of release. Such illegal confinement and cruel acts by the investigative agency exceed an error to the extent that they could normally occur in the course of performing duties of the State agency, and the degree of illegality is serious.

② From the time of illegal confinement on September 9, 197 to the time of being sentenced to a verdict of innocence through retrial, Plaintiff 1 and his family, including the deceased Nonparty 1, for about 40 years, had no choice but to reduce the above tort. It is obvious in light of the empirical rule that in the process, Plaintiff 1 suffered social and economic prejudice or discrimination, along with mental and physical suffering, such as anxiety, fear, spathn, and decentralization, and in the process.

③ In addition, the gravity of the tort of this case, which is one of the anti-human rights acts committed by the state agencies, fairness in the amount of consolation money in a similar judgment of state compensation, the situation of the times when the tort of this case occurred, as seen later, it constitutes exceptional cases where damages for delay to the compensation liability does not occur from the time of tort, but from the date of the conclusion of arguments at fact-finding as the standard for the calculation of consolation money. As such, the situation where the compensation has been delayed for a long time from the time of tort to

(2) Deductions and succession

(A) Deductions of criminal compensation

Article 6(1) of the Criminal Compensation and Restoration of Honor Act provides that “this Act shall not prohibit a person entitled to compensation from claiming compensation pursuant to other Acts.” Article 6(3) of the same Act provides that “When a person entitled to compensation under other Acts has received compensation for the same reason, the amount of compensation shall be determined after deducting the amount of compensation.” Accordingly, in calculating the amount of compensation, it is reasonable to deduct the amount of compensation first received in the process of calculating the amount of compensation, in the order of the damages and the principal at the time of payment of compensation in accordance with the general principle of appropriation of the Civil Act, the compensation liability should be appropriated in accordance with the general principle of appropriation of the compensation liability under the Civil Act. However, as seen earlier, in cases where the damages for delay of the compensation liability due to tort is calculated from the date of the closure of the fact-finding proceedings, if the amount of compensation for delay is equal to or greater than the amount of the principal already received, then the amount of compensation already paid to avoid calculation is deducted from the original (see Supreme Court Decision 2011Da3825, Mar. 29, 20120).

On June 21, 2016, Plaintiff 1 filed a claim for criminal compensation with Seoul High Court No. 2016Ka51 on June 21, 2016, and the above court decided to pay criminal compensation of KRW 897,80,000 on April 11, 2017, as seen earlier, and Plaintiff 1 claims for the deduction of the amount determined as criminal compensation. As such, Plaintiff 1’s consolation money remains 102,200,000 won (=Plaintiff 1’s consolation money of KRW 1,00,000 - Criminal compensation of KRW 897,800,000).

(B) Inheritance relations;

① As the deceased non-party 1 died, his consolation money was inherited at the rate of 1: 1:5, respectively, by Plaintiff 2 and five lineal descendants, including Plaintiff 3, who are his spouse: 1:

② The amount of damages that the Defendant shall pay to the Plaintiff 2 and 3 is as follows.

A) Plaintiff 2: 6,923,076 won (i.e., the deceased Nonparty 1’s consolation money of KRW 30,00,000 x statutory inheritance amount of KRW 3/13 and less than KRW 3/13; hereinafter the same shall apply)

B) Plaintiff 3: 4,615,384 won (=the deceased Nonparty 1’s consolation money of KRW 30,000,000 x statutory inheritance portion of KRW 2/13)

(3) Sub-decisions

A) In cases where the level of national income or monetary value, etc. at the time of the conclusion of arguments, which are based on the calculation of consolation money, has been significantly changed as a result of a significant change in the situation at the time of the occurrence of arguments between the time of tort and the time of the conclusion of arguments, and where it is exceptionally inevitable to increase the amount of consolation money, the damages for delay of the compensation obligation due to tort shall be deemed to have occurred from the date of the conclusion of arguments at the trial court, which is the basis of the calculation of consolation money (see Supreme Court Decision 2009Da103950, Jan.

B) Therefore, the Defendant is obligated to pay to Plaintiff 1 6,923,076 won to Plaintiff 2, and to pay damages for delay calculated at the rate of 5% per annum under the Civil Act from June 23, 2017, which is the date of the closing of argument, to July 21, 2017, which is the date of the judgment where it is reasonable to dispute over the existence of the Defendant’s obligation to perform, or the scope thereof, as regards the said money, and the amount of damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

[Attachment] Facts of prosecution: omitted

Judges Kim Sang-chul (Presiding Judge)

1) The defendant asserts that there is no objective evidence that the deceased non-party 1 was involved in the central information department, etc. in the course of investigating the plaintiff 1, and therefore there is no liability for damages against the deceased non-party 1. However, even if the public officials belonging to the defendant did not commit a direct tort against the deceased non-party 1, in this case where the plaintiff 1, a female student of the deceased non-party 1, was subject to illegal confinement and harsh treatment, and the deceased non-party 1, a family member, suffered a considerable mental suffering. Thus, the above assertion is therefore groundless in light of the empirical rule, since it is obvious that the deceased non-party 1, a family member, suffered a considerable mental suffering.