Plaintiff (Re-Appellant Plaintiff) 1 et al., Counsel for the plaintiff-appellant of the deceased Nonparty

Plaintiff (Re-Examination Plaintiff) 3 (Re-Examination Plaintiff) Law Firm Young-soo, Attorneys Shin Dong-dong et al., Counsel for the plaintiff-appellant)

Korea

May 16, 2019

Seoul Central District Court Decision 2012Gahap59393 Decided November 8, 2013

Seoul High Court Decision 2013Na2029705 Decided May 3, 2016

1. Of the judgment subject to a retrial, the part of the deceased Nonparty’s claim for consolation money and the part of claim for consolation money by the deceased Nonparty (Plaintiffs for retrial) shall be revoked.

2. Of the judgment of the court of first instance, the part claiming consolation money for the deceased non-party and the part claiming consolation money for the plaintiff (the plaintiff) 3 shall be modified as follows.

A. Defendant (Defendant) shall pay 83,375,040 won to Plaintiff (Plaintiffs) 1, 55,583,360 won to Plaintiff (Plaintiffs) 2, and 86,625,600 won to Plaintiff (Plaintiffs for Retrial) 3, as well as 5% per annum from October 11, 2013 to June 13, 2019, and 15% per annum from the next day to the day of full payment.

B. Of the part claiming consolation money of the deceased non-party of the deceased non-party 1 and 2 and the part claiming consolation money of the plaintiff (the plaintiff) 3, the remaining claims except the part cited in the above A. are all dismissed.

3. 90% of the total litigation costs before and after the review shall be borne by the Plaintiff (Plaintiffs) and 10% by the Defendant (Defendants) respectively.

4. Paragraph 2 (a) of this Article may be provisionally executed;

1. Purport of claim

Defendant (hereinafter “Defendant”) paid to the deceased Nonparty 1,166,66,666 won and the Plaintiff (hereinafter “Plaintiff”) 1,054,54 won per annum from the date of closing argument in the court of first instance to the date of rendering a judgment in the court of first instance, and 15% per annum from the next day to the date of full payment (the Plaintiff’s claim was reduced in this court’s claim). The amount of KRW 16,666,666, Plaintiff 35,54,545, each of the above claims of the deceased Nonparty 3’s claim amounting to the share of the family consolation money of the deceased Nonparty 16,66,66, and the amount of KRW 35,45,545, which is the claim amount corresponding to the share of the family consolation money of the deceased Nonparty 3’s claim, became final and conclusive as the final appeal was dismissed in the final appeal of the judgment subject to retrial, as seen below)

2. Purport of appeal

A. Plaintiff 3: The part against the Plaintiff seeking payment among the judgment of the first instance court is revoked. The Defendant shall pay to Plaintiff 3 935,192,582 and the amount calculated by applying 5% per annum from October 1, 2013 to November 2, 2013, and 15% per annum from the next day to the date of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiffs’ claim corresponding to the revoked part is dismissed in entirety.

3. Purport of request for retrial;

The decision subject to a retrial is revoked. Of the judgment of the first instance, the part claiming consolation money of the deceased non-party and the plaintiff 3 is modified as follows. The defendant shall pay to the plaintiff 1 1 120 million won, 80 million won per annum from October 11, 2013 to November 8, 2013, and 15% per annum from the next day to the day of complete payment. The defendant shall pay to the plaintiff 3 50 million won with 150 million won per annum from October 11, 2013 to November 8, 2013, and 150 million won per annum from the next day to the day of full payment (the amount of consolation money of the plaintiff 15% per annum from the next day to November 8, 2013 to the day of full payment, the amount of consolation money of the plaintiff 1 and 3% per annum from the next day to the day of full payment to the day of complete payment (the amount of consolation money of the plaintiff 150 million won per annum).

1. Facts of premise;

A. Circumstances leading to the establishment of the original judgment

1) On July 12, 2012, the deceased Nonparty and Plaintiff 3 filed a lawsuit of the first instance court (Seoul Central District Court 2012Ga59393) against the Defendant claiming mental damage, etc. on the ground of the Defendant’s tort that “The deceased Nonparty and Plaintiff 3 were illegally arrested and detained by police officers and investigators affiliated with the Central Information Department, and were convicted of the conviction based on an emergency measure which is unconstitutional and invalid (hereinafter “the conviction was pronounced,” and that the conviction was spread to the press as if the organization of an anti-government organization was a cause of anti-government organization, thereby impairing honor.”

On November 8, 2013, the court of first instance rendered a partial favorable judgment on the part of the deceased non-party's claim and the part of the deceased non-party's claim [the deceased non-party 138,958,400 won [the deceased non-party 138,00,000 won - the criminal compensation of 61,041,60 won - the criminal compensation of 386,625,600 won - the criminal compensation of 150,000 won - the criminal compensation of 63,374,400 won - the compensation of 63,000 won - the compensation of 63,374,400 won respectively] and the damages for delay of the family's claim [the deceased non-party 16,66,66 won, the plaintiff 35,454,545 won and damages for delay thereof].

2) As to the judgment of the court of first instance, both Plaintiff 3 and Defendant filed an appeal against each of their lost parts (Seoul High Court 2013Na2029705), and “the deceased Nonparty and Plaintiff 3 were recognized as a person related to democratization movements under Article 2 subparag. 2(d) of the former Act on the Compensation for Democratization Movement (hereinafter “former Act”). As long as living allowances, etc. were paid pursuant to the above Act, the decision to pay compensation, etc. pursuant to this Act is deemed to have been made pursuant to Article 18(2) of the Act on the Compensation for Democratization Movement (where the applicant consented, the decision to pay compensation, etc. pursuant to this Act shall be deemed to have been made by a judicial compromise under the Civil Procedure Act on the damages suffered in relation to democratization movements) of the judgment of first instance, which became effective as that of a settlement in court, and thus, it is unlawful for the protection of rights to the deceased Nonparty and Plaintiff 3’s claim for consolation money on May 3, 2016.”

3) On the above judgment, both the deceased Nonparty, Plaintiff 3 and the Defendant appealed (Supreme Court Decision 2016Da225704), but was dismissed on August 17, 2016.

B. Acknowledgement of the constitutional complaint claim by the deceased non-party and plaintiff 3 and the petition for retrial

1) During the appellate trial proceeding, the deceased Nonparty and Plaintiff 3 filed an application with the appellate court for adjudication on constitutionality of Article 18(2) of the Democratization Compensation Act, but were dismissed. On June 2, 2016, the Constitutional Court filed a request for adjudication on constitutional complaint with the Constitutional Court (2014HunBa215) pursuant to Article 68(2) of the Constitutional Court Act.

2) After conducting a consolidated examination of related cases on August 30, 2018, the Constitutional Court rendered a ruling that "the part concerning mental damage caused by a tort among "damage caused in relation to democratization movements" under Article 18 (2) of the Democratization Compensation Act shall be unconstitutional (see Constitutional Court Decision 2014Hun-Ga10, 18, 20, 22, 25, 2018Hun-Ba1, 2014Hun-Ba180, 304, 305, 305, 2015Hun-Ba13, 283, 284, 357, 434, 435, 436, 437, 441, 442, 2016Hun-Ba23, 4964, 67, 737, 398, 205, 3748, 285, 2015

3) Plaintiffs 1, 2, and 3, who are the deceased Nonparty’s successors, filed a petition for the review of this case pursuant to Article 75(7) of the Constitutional Court Act according to the decision of unconstitutionality of this case.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 43 through 45, purport of the whole pleadings

2. Determination as to the existence of a ground for retrial

Article 75(7) of the Constitutional Court Act provides that in a case where a constitutional complaint against a decision to dismiss an application for adjudication on the constitutionality of a law is accepted, if a litigation case related to the relevant constitutional complaint becomes final and conclusive, the party concerned may request a review. The purport of the above provision is that in a case where a party who requested a adjudication on the constitutionality of a law is dismissed by a court and the adjudication on the constitutional complaint may be finalized without suspension of the trial on the relevant case pending in the court even in the adjudication on the constitutional complaint procedure, the person who requested the adjudication on the constitutionality of a law can seek a means of objection to remedy the relevant case which has already been finalized before the constitutional complaint is accepted. Therefore, the "litigation case related to the relevant constitutional complaint" under the above provision refers to the relevant litigation case which is the premise of the constitutional complaint (see Supreme Court Decisions 91Nu7101, May 12, 1992; 92Nu13400, Jul. 27, 1993, etc.).

As to the instant case, in the instant appellate lawsuit filed against the Defendant by the deceased Non-party, who was the premise of the above constitutional complaint, and Plaintiff 3, the judgment subject to a retrial, which dismissed the claim for consolation money for mental suffering of the Plaintiffs by applying Article 18(2) of the Democratization Compensation Act that lost its effect as the decision of unconstitutionality, became final and conclusive as the judgment subject to a retrial was rendered. Accordingly, according to the above, the instant judgment subject to a retrial constitutes the instant case where the opportunity for the decision of unconstitutionality through the constitutional complaint was based on the pertinent case, and thus, it is reasonable to deem that there exists a ground for retrial as to the instant judgment subject to a retrial under Article 7

3. Judgment on the merits of the request for retrial

(a) Basic facts;

The reasoning for this part of the Court’s explanation is as follows, and this part of the reasoning for the first instance judgment is as stated in Article 420 of the Civil Procedure Act, except in the following cases:

[Supplementary Use]

○ “Plaintiff Nonparty” is regarded as “the deceased Nonparty.”

In the 6th to 4th of the judgment of the first instance court, "the non-party and the plaintiff 3 were released from amnesty respectively on December 23, 1979" means "the deceased non-party, the plaintiff 3 was released on February 16, 1975, and then the deceased non-party and the plaintiff 3 were released from amnesty on December 23, 1979, respectively."

[Supplementary Parts]

○ The following shall be added to 7 pages 8 of the first instance judgment:

“... Death and the taking over of action.”

On July 25, 2017, the Nonparty taken over the lawsuit by Plaintiff 1, his spouse, and Plaintiff 2, his child.

○ 7 pages 9 to 10 of the first instance judgment [based grounds for recognition] add “A evidence Nos. 24 through 31, A No. 44, and 45.”

B. Determination on this safety defense

With respect to the plaintiffs' claim for the state compensation of consolation money due to the above illegal acts by the public officials belonging to the defendant, the defendant, by receiving compensation under the Democratization Movement Compensation Act in relation to the above democratization movements and consenting to the decision to pay compensation, and thus, a judicial compromise has been established pursuant to Article 18 (2) of the Act on the Compensation for Democratization Movement in accordance with Article 18 (2) of the Act on the Compensation for Democratization Movement, and therefore, the plaintiffs' lawsuit of this case has no interest in the protection of rights. However, the above assertion is without merit as seen earlier.

C. Existence of liability for damages for mental suffering

According to the above facts of recognition, the defendant violated the duty to protect the fundamental human rights of the people and committed illegal acts such as illegal arrest and detention and illegal investigation, trial, inspection, etc. against the deceased non-party and the plaintiff 3 (hereinafter "the illegal acts of this case"). Thus, barring special circumstances, the defendant is obligated to compensate for consolation money for mental damage suffered by the deceased non-party and the plaintiff 3 due to the above illegal acts pursuant to Article 2 (1) of the State Compensation Act.

D. Scope of liability for damages

1) As seen earlier, the amount of consolation money to the deceased, the non-party, and the non-party 3 should be determined in consideration of the content and degree of the tort in this case, the occupation and experience before and after the illegal confinement of the deceased and the plaintiff 3, the age and family relation of the deceased and the plaintiff 3, the growth environment and property status, the amount of consolation money to the plaintiff 1 and the non-party 3 after the lapse of three months from the time when the tort in this case was committed, the period of time to the present time, the age and family relation of the deceased and the plaintiff 3, the growth and property status, and the amount of consolation money to the plaintiff 1 and the non-party 3, and it is necessary to appropriately increase the amount of consolation money to the non-party 6, the amount of consolation money to the non-party 1 and the non-party 3, and the non-party 2, the amount of consolation money to the non-party 1 and the non-party 1 and the non-party 2, the amount of consolation money after the defendant 2 and the non-party 1 and the non-party 2.

2) Meanwhile, in a case where a considerable change occurs in comparison with the time of tort at the time of the conclusion of arguments when a long-term period has elapsed between the time of tort and the time of the conclusion of arguments, damages for delay of consolation money due to tort shall be deemed to have occurred from the date of the conclusion of arguments at the fact-finding court, which is the basis of calculating consolation money (see Supreme Court Decision 2010Da35572, Jan. 13, 201). In a case where consolation money is calculated based on the date of the conclusion of arguments at the court of first instance without calculating consolation money as of the date of the conclusion of arguments at the court of first instance, the damages for delay of the compensation obligation shall have occurred from the date of the conclusion of arguments at the court of first instance, which is the base date of calculating consolation money (see Supreme Court Decision 20

As seen earlier, around around 1974, around 1974, when tort against the deceased Nonparty and Plaintiff 3 began, there was a significant change in the prices, national income level, etc. of the Republic of Korea, compared to the time of tort, and there was a considerable change in the monetary value, etc. as to the time of closing argument. Considering such change, the fact that there was a change in the situation, the consolation money amount was determined based on the date of closing argument at the court of first instance. Accordingly, the damages for delay of the Defendant’s deceased Nonparty and Plaintiff 3 shall eventually result from the date

Meanwhile, the fact that the deceased non-party died on July 25, 2017 is as seen earlier, and Plaintiff 1 and Plaintiff 2, the deceased non-party’s spouse, inherited the deceased non-party’s property.

As such, KRW 138,958,40 of the deceased Nonparty’s damage claim against the Defendant was inherited by Plaintiff 1 in KRW 83,375,040 ( KRW 138,958,400 x 3/5) and KRW 55,583,360 ( KRW 138,958,40 x 2/5) to Plaintiff 2.

3) Therefore, the Defendant is obligated to pay to Plaintiff 1 the amounting to KRW 83,375,040, KRW 55,583,360, and KRW 86,625,60 to Plaintiff 3 as well as damages for delay calculated by the rate of 5% per annum under the Civil Act from October 11, 2013, which is the date of the closing of argument in the court of first instance, until June 13, 2019, which is the date of this decision, and the date of full payment, from the following day to the date of full payment.

4. Conclusion

Therefore, the part concerning the claim for consolation money for the deceased non-party and the plaintiff 3 among the judgment subject to a retrial is revoked as there are grounds for retrial. The plaintiffs' claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Among the judgment of the court of first instance, the part concerning the claim for consolation money for the deceased non-party and the plaintiff 3's claim of consolation money for the deceased non-party and the plaintiff 3 are partly unfair, and the part concerning the claim is modified according to the deceased non-party's acceptance

Judges Kang Jong-soo (Presiding Judge) (Presiding Judge)

Note 1) The date of the closing of argument in the first instance trial.

2) It is the date of sentencing in the first instance trial.

Note 3) The Act was enacted on January 12, 200 by Act No. 6123, and was amended by Act No. 13289, May 18, 2015