[1] The meaning of "violation of the Acts and subordinate statutes" in state liability, and whether a police officer's violation of the limits under the Acts and subordinate statutes or sound reasoning while conducting criminal investigations constitutes "violation of the Acts and subordinate statutes" (affirmative)

[2] Whether a police officer who investigates a sexual crime, who is a victim, has an official duty to take more detailed consideration of such a police officer so that he/she does not have any aggravated damage due to another psychological or physical pain in the course of investigation (affirmative)

[3] The case holding that a police officer in charge of a sexual crime committed an act of causing a victim, who is a student of the age, to be identified as a criminal in a criminal and office, without using a criminal identification room established at a police station, at a public place where the suspect is placed in one lump at the public place constitutes an act of violating the State Compensation

[4] The meaning of "undertake duty" under Article 2 (1) of the former State Compensation Act

[5] Where a police officer in charge of investigating or participating in an investigation of a sexual crime suffers a loss to the victim by disclosing or divulging the victim's personal information, etc., whether the State's liability for compensation is established (affirmative)

[1] Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of March 14, 2008) / [2] Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of March 14, 2008) / [3] Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of March 14, 2008) / [4] Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of March 14, 2008) / [5] Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of March 14, 2008), Article 21 of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof

[1] Supreme Court Decision 200Da22607 delivered on May 17, 2002, Supreme Court Decision 2005Da87774 Delivered on June 9, 2005 / [4] Supreme Court Decision 93Da14240 Delivered on April 21, 1995 (Gong195Sang, 1931), Supreme Court Decision 98Da39060 Delivered on January 5, 2001 (Gong2001Sang, 417), Supreme Court Decision 2004Da26805 Delivered on January 14, 2005 (Gong205Sang, 283) / [5] Supreme Court Decision 208Da2631 delivered on September 22, 1998 (Gong198Ha, 205Ha, 205Da42845 delivered on April 25, 2005)

Plaintiff 1 and two others (Attorney Lee Byung-gun, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2006Na108918 decided August 16, 2007

All appeals are dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the unused part of the criminal identification room

A. In the state liability of compensation, the harmful act by a public official should be a violation of the law, and the violation of the law is not only a violation of the strict meaning of the law, but also a violation of the law, such as respect for human rights, prohibition of abuse of power, and trust and good faith, and also lacks objective legitimacy. Thus, if a police officer violated the limits of the law or sound reasoning that should be observed as a police officer in the course of criminal investigation, it constitutes a violation of the law (see, e.g., Supreme Court Decisions 2000Da22607, May 17, 2002; 2005Da8774, Jun. 9, 2005).

B. In performing his duties, a police officer has a duty to respect the freedom and rights of the people in accordance with the Constitution and laws and to protect the reputation and privacy of a crime victim. In particular, if the victim of a sexual crime is a student of the age, such as this case, a police officer has a duty to take into account more carefully in the course of an investigation so as to prevent another psychological or physical harm from being caused by another psychological or physical harm.

However, according to the facts duly admitted by the court below, the police officer in charge of the sexual crime of this case set up 41 suspects at the criminal office and office located in the public place without using the criminal identification room installed in the police station, and let the plaintiffs 1 and 2, the victim, the defendant 1 and the defendant 2 land the offender on the date and place of the crime. It is clear that the police officer's act is in violation of the legal or logical limits, and it cannot be justified by the motive and purpose of the convenience in investigation, and there is no reason to see that the above act is inevitable and justifiable.

In the same purport, the court below is just to determine that the above act of the police officer constitutes a violation of the law under the State Compensation Act, and there is no violation of the law such as misunderstanding of legal principles or violation of the rules

2. As to the insult and the part of the speech in the identification room

"A performance of official duties" under Article 2 (1) of the former State Compensation Act (amended by Act No. 8897 of Mar. 14, 2008) refers to a performance of official duties by a public official or an act closely related thereto. In determining this, if an act is objectively seen as a performance of official duties by observing the external appearance of the act itself, it shall be deemed that the act was performed by a public official even if the act was not actually performed, or if the actor was not subjectively intended to perform official duties, the act was performed by the public official (see Supreme Court Decisions 93Da14240, Apr. 21, 1995; 2004Da26805, Jan. 14, 2005, etc.).

According to the reasoning of the judgment below, the court below acknowledged the fact that the police officer, waiting at the police station identification room, made an insulting speech to Plaintiff 1 and Plaintiff 2, who had been waiting at the room, and judged that the above act by the police officer is an act of performing his duties or an act closely related thereto from the objective view of appearance. The judgment of the court below is just in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to state liability, violation of the rules of evidence, etc. as alleged.

3. On the part of the fact of damage and personal information leakage

If the content of official duties imposed on a public official is not merely for the public’s abstract interest or for the purpose of regulating the order inside the administrative agency, but entirely or incidentally for the protection of the specific safety and interests of an individual from among the members of the society, damages suffered by a public official’s violation of such official duties shall be liable to the State to the extent that proximate causal relation is acknowledged (see Supreme Court Decisions 98Da2631, Sept. 22, 1998; 2005Da62747, Dec. 27, 2007). Article 21 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof imposes on a public official in charge of or involved in the investigation into or trial against a sexual crime, thereby protecting the reputation and privacy of the victims of the sexual crime. Accordingly, if a police officer involved in the investigation into a sexual crime discloses personal information, etc. of the victim against such official duties, the State shall compensate for damages suffered by the victim.

The court below accepted the judgment of the court of first instance and acknowledged that the police officer by negligence leaked the documents containing the specific facts of damage and personal information of the plaintiff 1 to the persons who enter the police station so that the above plaintiff's sex, living area, academic year, age, etc. was reported to the press. The police officer in charge of the sexual crime of this case showed that the above plaintiff's identity and damage were divulged while other persons were present in singing, and thus, the defendant is liable to compensate for the mental suffering suffered by the plaintiffs. The above judgment of the court below is just in accordance with the above legal principles and there is no violation of the rules of evidence, etc.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)