2014Da23130 damages (ar)

person

1. A;

2. B

3. C.

4. D.

Korea

Seoul High Court Decision 2014Na2018900 Decided October 24, 2014

December 10, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

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

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 the “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”) fails to meet the requirements per se. Moreover, it is unconstitutional and invalid as it infringes on the fundamental rights of the people by seriously restricting the freedom of expression, the warrant requirement and physical freedom, the freedom of residence, the right to petition, and the academic freedom stipulated in the current Constitution, and by seriously restricting the freedom of expression, the freedom of expression, the warrant requirement and the right to petition, and the right to receive an emergency measure for the protection of national safety and public order (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013). However, if a criminal suspect was arrested, detained, and prosecuted without a warrant under subparagraph 9 of the emergency measure, or a judge’s action of conviction by applying the emergency measure is not subject to criminal compensation.

B. Meanwhile, in a case where a public prosecution was instituted on the basis of evidence collected by a State agency in the course of an investigation and a final and conclusive judgment of conviction was rendered, but the case under the latter part of Article 325 of the Criminal Procedure Act in the retrial procedure constitutes “when there is no proof of a criminal fact” and thus a final and conclusive judgment became final and conclusive, the State’s liability for damages caused by the arrest, detention,

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), which is the Act on the Punishment, applied to a defendant in a retrial proceeding against a violation of Emergency Measure No. 9, becomes final and conclusive on the grounds that such act was unconstitutional or invalid, barring any other special circumstances, 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 in the course of the investigation, was not immediately deemed to constitute a State’s tort. In light of the aforementioned legal principles, the circumstance that the judgment of innocence became final and conclusive on the grounds that such act was committed by the State, and the State’s liability for damages cannot be deemed to have been established on the grounds that such act committed by the State was committed in the course of investigation. In this case, the State’s liability for damages should be determined by separately examining whether there was a causal relationship between the act committed in the course of investigation and the conviction committed by the investigative agency, whether guilty was recognized, grounds for commencing a retrial, and circumstances leading up to the conviction and grounds for not having been found guilty.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On December 27, 197, Plaintiff A was detained for violating Emergency Decree No. 9, and then prosecuted around that time was instituted, and was sentenced to suspension of qualification for one year and six months by imprisonment with labor for Seoul District Court 78Gohap21 on February 6, 1978.

B. On June 10, 1978, the plaintiff A appealed against it, and the Seoul High Court Decision 78Do429 delivered on June 10, 1978, sentenced to one year and six months of imprisonment and one year of suspension of qualification, but sentenced to a stay of execution for two years in imprisonment (hereinafter referred to as "the judgment on review") and released on June 10, 1978, and thereafter the judgment subject to review became final and conclusive around that time.

C. On May 5, 2013, Seoul High Court 2013No59, Plaintiff A filed a petition for a retrial on the grounds that Emergency Decree No. 9 was unconstitutional. On August 20, 2013, Plaintiff A’s charge against Plaintiff A, which was prosecuted by applying the subparagraphs of paragraphs 9(7) and 1 of the Emergency Decree No. 9, which was unconstitutional and invalid, constitutes “when the case is not committed” under the former part of Article 325 of the Criminal Procedure Act, and the judgment was finalized on October 19, 2013.

3. Examining these facts in light of the legal principles 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 grounds that the Emergency Measure No. 9 was unconstitutional or invalid in the retrial procedure for the conviction of a violation of Emergency Measure No. 9, barring any special circumstance, it cannot be deemed that the judgment of conviction was rendered in the judgment of retrial due to the State agency’s illegal act that was committed during the investigation process, barring any other special circumstance. Therefore, such circumstance alone does not immediately mean that the arrest, detention, etc. of the investigative agency against Plaintiff A

Nevertheless, the lower court determined that a public official belonging to the Defendant committed an intentional or negligent act of 166 days detained while arresting and convicted the Plaintiff A on the grounds of the Emergency Measure No. 9, which essentially infringes on the fundamental rights of the people guaranteed by the Constitution, constitutes a tort by intention or negligence. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for establishing State’s liability for damages arising from the unconstitutionality or invalidation of Emergency Measure No. 9, thereby failing to exhaust all necessary deliberations, which affected the conclusion

4. Therefore, without examining the Plaintiff A’s grounds of appeal and the remainder of the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Jong-hee

Chief Justice shall award and award;

Justices Kim Jae-tae

Justices Park Sang-ok