[1] The case holding that the head of a detention house recognized the State's liability for damages on the ground that the act of the head of the detention house accommodates a prisoner who has no particular suspicion of disciplinary action in the investigative confinement room and prohibits interviews, etc. violates Article 143 of the Enforcement Decree of the Criminal Administration Act, and that the prisoner suffered mental pain

[2] In a case where an investigative agency has expressed its intent to demand punishment of an offender in a protocol prepared by questioning a person who has a right to file a complaint as a witness or a victim, whether the complaint is established

[3] The requirements to recognize the State's liability for damages in a case where a public official performs his/her duties by interpreting a statute and finds a reasonable ground based upon rush and so process was carried out, but such process was caused to be illegal

[4] The case holding that although the judicial police officer of a correctional institution did not prosecute a prisoner by assaulting a prisoner, and only the act of closing the case was found to be illegal as a result of disciplinary action, it cannot be said that the above judicial police officer had intention or negligence to recognize the State's liability for damages

[5] The case holding that the State's liability for damages is recognized on the ground that the act of a prisoner who was not confined in a ward without any inevitable reason by the prison warden violates Article 21 (1) of the Enforcement Decree of the Criminal Administration Act, and the prisoner suffered mental pain due to such unlawful act was obviously obvious in light of the empirical rule

[1] The case holding that the head of a detention house recognized the State's liability for damages on the ground that the act of the head of the detention house accommodates a prisoner who has no particular suspicion of disciplinary action in the investigative confinement room and prohibits interviews, etc. violates Article 143 of the Enforcement Decree of the Criminal Administration Act, and that the prisoner was suffering from mental pain

[2] In a case where an investigative agency examines a person who has a right to file a complaint as a witness or a victim, the statement includes an expression of intent to demand punishment of the offender, and if such expression of intent is recorded in the protocol, the complaint is lawful

[3] In cases where a public official performs his/her duties by interpreting Acts and subordinate statutes after finding a reasonable ground, and thereby, he/she processes it, even if the processing results in an unlawful consequence and bring about unfair enforcement of the Acts and subordinate statutes, if it can be deemed that it is difficult to expect to an average public official faithfully responsible for the above treatment methods, even if the act is unlawful, it cannot be deemed that the public official is responsible for intentional or negligent acts under the State Compensation Act even if the act is unlawful. There should be special circumstances to recognize that the public official clearly exercised the authority granted to him/her, such as where the public official made the above decision with an unlawful or unjust purpose, or where the public official clearly violated the standards that require him/her to comply with the performance of his/her duties.

[4] The case holding that even if a judicial police officer of a correctional institution did assault against a prisoner and did not prosecute him/her, and did not process him/her with reasonable grounds in the termination of a case by disciplinary action, it cannot be deemed that there was an intentional act or negligence to the extent that the judicial police officer recognized the State's liability for damages, on the ground that it did not lead to an unlawful or unjustifiable purpose excluding criminal admission procedure despite the complaint of a victimized prisoner in the course of performing such duties, or that there was a significant violation of the criteria requiring a correctional officer to observe the duty in the course of performing duties

[5] The case holding that the State's liability for damages is recognized on the ground that the act of a prisoner who was not confined in a ward without any inevitable reason by the prison warden violates Article 21 (1) of the Enforcement Decree of the Criminal Administration Act, and the prisoner suffered mental pain due to such unlawful act is obvious in light of the empirical rule.

[1] Article 2 (1) of the State Compensation Act, Article 751 of the Civil Act, Article 18 of the Criminal Administration Act, Article 143 of the Enforcement Decree of the Criminal Administration Act / [2] Article 237 (1) of the Criminal Procedure Act, Article 5 subparagraph 1 and Article 6 subparagraph 1 of the Act on the Persons Performing the Duties of Judicial Police Officials and the Scope of their Duties / [3] Article 2 (1) of the State Compensation Act / [4] Article 2 (1) of the State Compensation Act, Article 46 (1) of the Criminal Administration Act / [5] Article 2 (1) of the State Compensation Act, Article 751 of the Civil Act, Article 21 (1) of the Enforcement Decree

[2] Supreme Court Decision 85Do190 delivered on March 12, 1985 (Gong1985, 587)

Plaintiff

Korea

Daegu District Court Decision 2006Gadan996 Decided September 22, 2006

may 2, 2007

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to pay is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed

The defendant shall pay to the plaintiff 1,60,000 won with 5% interest per annum from June 25, 2004 to May 16, 2007, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 15,00,000 won with 5% per annum from June 25, 2004 to the date of the first instance judgment, and 20% per annum from the next day to the date of full payment (the plaintiff withdraws from the first instance judgment the part concerning the claim for damages arising from the infringement of personal rights and environmental rights in the Seoul detention center, the part concerning the claim for damages arising from the infringement of personal rights and environmental rights in the Seoul detention center, the part concerning the claim for damages arising from the infringement of the right to use the goods kept in custody in the Chuncheon prison, the part concerning the claim for damages arising from the refusal to receive the written petition).

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged according to the purport of Gap evidence 10-1 to 9, 16-1 to 5, and Eul evidence 33.

The plaintiff was detained for rape on August 29, 2001 and was admitted to the Seoul detention center on September 5, 2001. On December 4, 2001, the plaintiff was sentenced to five years of imprisonment at the Seoul District Court on May 31, 2002, and the sentence became final and conclusive on May 31, 2002, transferred to the Chuncheon prison on August 16, 2002, transferred to the Chuncheon prison on December 18, 2002, and was transferred to the Chuncheon prison on June 11, 2004, and was later discharged from the prison via the Daegu Prison on October 206.

2. Occurrence of liability for damages;

The plaintiff asserts that the defendant is obligated to pay 15,000,000 won and damages for delay as consolation money to the plaintiff because he suffered mental damage due to the illegal acts committed by public officials belonging to the defendant. The plaintiff's specific assertion is examined as follows.

(a) Illegal acts in the Seoul detention center;

(1) The plaintiff's assertion

On October 9, 2001, the Plaintiff was assaulted by Nonparty 1, who is the same inmate in the Seoul detention center, at around 17:00, and was investigated into the 15th floor of the above detention center from October 10 to the 16th of the same month. Although Article 143 of the Enforcement Decree of the Criminal Administration Act stipulates that only the inmate under investigation, who is the suspect of disciplinary action, can be detained in the fact of assistance, the Plaintiff’s acceptance of the Plaintiff, who is not the suspect of disciplinary action, as the victim of assault, is unlawful on the ground that there is no legal basis, and thus, the Defendant is obliged to pay 4,000,000 won as consolation money for mental suffering.

(2) Facts of recognition

The following facts are either disputed between the parties, or acknowledged according to the overall purport of Gap evidence 4-7, 9-1, 2, 7-1, 7-14, 17-1 through 4, 37, 38, and the whole arguments.

(A) Around 18:00 on October 9, 2001, the Plaintiff: (a) 11, 2001; (b) Nonparty 1, who was misunderstanding that the Plaintiff applied for the purchase at the 11st room of the Seoul House 1, a 11st century, was unable to engage in bullying, such as taking out the purchase from Nonparty 1, while taking a bath to the Plaintiff; and (c) accordingly, (d) demanded that the Plaintiff take the precautionary measure be taken, but was notified from the employee in charge that he would receive the following measures.

(B) On the following day, Nonparty 2, 3, and 4, a correctional officer of the Seoul detention center, received a written self-statement from Nonparty 5, 6, and 7, who is the plaintiff, Nonparty 1, and the same ward, and submitted the written self-statement to the head of the detention center, and submitted to the head of the detention center, "Nonindicted 1, regardless of the plaintiff's intention, arbitrarily uses the purchased goods, and forced the plaintiff to take three times a day from September 8, 201 to June 26 of the same month, and forced the plaintiff to take three times a day. On October 9, 2001, the plaintiff threatened the plaintiff to "I am, I am, and I am, if I am, I am am.," and the plaintiff was suffering from the physical disease. Thus, the plaintiff was investigated into the ward, and the plaintiff's interview warrant was conducted during the period of investigation pursuant to Article 7 (2) of the Rules on the Punishment and Disciplinary Punishment of Prisoners."

(C) Accordingly, from October 10, 201, the Plaintiff was confined in the 15 room of the above detention house, which is a ward for investigation, and was investigated, on the 16th of the same month, the Plaintiff was subject to a disciplinary measure on the 16th of the same month, on the grounds that the Plaintiff did not have any other suspicion of disciplinary action. Meanwhile, Nonparty 1 was subject to a disciplinary measure on the 1st of the above detention house as the above assault, etc. for two months of grace period from the disciplinary committee of the above detention house.

(3) Determination

According to the above facts, the act that the head of the Seoul detention center accommodates the plaintiff who has no particular suspicion of disciplinary action in the confinement room for 7 days, and prohibits visitation, etc. is found to be in violation of Article 143 of the Enforcement Decree of the Criminal Administration Act. Since it is obvious in light of the empirical rule that the plaintiff suffered mental suffering due to the above illegal act, the defendant is liable to compensate the plaintiff for damages caused thereby.

In regard to this, the defendant, at the time, fighting with the non-party 1, who is the prisoner in the same ward, was suspected of having applied for the purchase of goods by the inmate in the same ward, and was investigated into the plaintiff as a person suspected of disciplinary action, so the confinement by the head of the Seoul detention center is a legitimate act. However, the defendant's assertion is not sufficient to recognize it only by the descriptions of the evidence Nos. 13, 39-1, and 2, and there is no other evidence to recognize it. Thus,

(b) Offenses committed in Chuncheon correctional institutions;

(1) A judicial police officer’s violation of duty of transfer

(A) The party's assertion

On September 15, 2002, at around 18:20 on September 15, 2002, the Plaintiff suffered from an assault from Nonparty 8, a prisoner, at the 5 lower-class room of Yancheon Prison, and from the 5 lower-class room of Yancheon Prison. The above prison judicial police officer asserts that the above case was not forwarded to the prosecution despite the Plaintiff’s strong desire to punish, and thus, the Plaintiff infringed the Plaintiff’s right to file a complaint, etc., so the Defendant is obligated to pay 3 million won as consolation money for mental suffering.

In regard to this, the defendant asserts that, in the case of the Chuncheon prison, it is difficult to view that the plaintiff filed a complaint against the non-party 8 at the time when the judicial police officer of the Chuncheon prison prepared the victim's statement, but it is not clear whether the plaintiff was subject to criminal punishment. ② Even if the plaintiff filed a complaint against the non-party 8, the Chuncheon prison judicial police officer of the defendant did not file a criminal case, taking into account the fact that the plaintiff's wife's wife's wife's wife was minor and that the non-party 8 was in depth against the non-party 8, and the case is imposed a disciplinary action against the non-party 8 pursuant to Article 16 (3) of the Guidelines on the Prevention of Violence of Prisoners, the judicial police officer of the Chuncheon prison did not have any intention or negligence

(B) Facts of recognition

According to the overall purport of evidence Nos. 8-1 through 4, 16-1 through 5, 17-1 through 5, 26, and 27 of evidence Nos. 8-1 through 5, 17-1 through 5, and Eul evidence Nos. 26 and 27, the plaintiff at around 18:20 on September 15, 2002, the plaintiff was aware of the face from Non-party 8 who misleads the plaintiff that he had made the horses to others, and suffered from the injury that the plaintiff had taken on the left eye of the left eye, Non-party 9 and 10, who is an official belonging to Chuncheon prison, made a statement with the judicial police officer on September 17, 2002, and prepared a subsequent statement with the plaintiff as to Non-party 8 who abused the plaintiff on the status of handling judicial police officer's affairs, and at the time, the plaintiff did not reply to the question "I want the punishment of Non-party 8."

(C) the board:

Article 5 subparag. 1 and Article 6 subparag. 1 of the Act on the Persons Performing the Duties of Judicial Police Officials and the Scope of their Duties provide that “A state public official appointed by the chief public prosecutor of the district public prosecutor’s office having jurisdiction over the workplace upon the recommendation of the head of the competent government office from among public officials belonging to correctional institutions, etc. shall perform the duties of judicial police officers only for crimes committed in the relevant correctional institution, etc.” Article 237(1) of the Criminal Procedure Act provides that “a complaint or accusation shall be made in writing or orally to the public prosecutor or judicial police officer.” In the event an investigative agency examines a person who has the right to file a complaint as a witness or a victim, the statement includes an expression of intent demanding the punishment of the offender, and if the declaration of intent is entered in the protocol, the complaint is lawful (see Supreme Court Decision 85Do190, Mar. 12, 1985). Thus, the Plaintiff’s statement regarding a crime for which judicial police officers can perform the duties of the said public official, which was made orally to the judicial police officer.

However, in a case where a public official performs a duty by interpreting the statutes and thereby handles it in accordance with the reasonable ground, even if the process results in an illegal act and bring about an unfair enforcement of the statutes, if it can not be deemed that it would be difficult to expect an average public official faithfully in good faith that he/she would be in excess of such processing method, it cannot be deemed that the act is unlawful, and thus, there is no reason for the public official's intention or negligence under the State Compensation Act. In order to recognize the state's liability for compensation, there should be special circumstances to recognize that a public official in charge of each correctional institution made the above decision with an illegal or unjust purpose, or that a correctional officer clearly violates the purpose of the authority granted to him/her, such as where the law clearly violates the criteria for complying with the correctional officer's duty.

According to the above case, the above evidence and the whole purport of oral argument are as follows: Nonparty 9 et al.: (a) took into account the developments leading up to the assault in this case; (b) the circumstance immediately after the assault in this case was committed; (c) the injury inflicted on the Plaintiff appears to have been brought to the disciplinary procedure without being charged with Nonparty 8; and (d) Article 46(1) of the Criminal Administration Act provides that disciplinary action may be imposed if the prisoner commits an act in violation of the penal provisions such as the Criminal Act and the Punishment of Violences, etc. Act; and (c) Article 16(3) of the Guidelines for the Prevention of Prisoners' Violence provides that "if the cure period is less than two weeks, if the victim agreed with the victim or the perpetrator complies with his fault, it can only be imposed if the perpetrator violated the above Act and subordinate statutes; and (d) Nonparty 9 et al. demanded that the above act was based on the ground for the act in question; and (e) Nonparty 8's injury was referred to the disciplinary procedure and did not have been subject to the disciplinary procedure.

(2) Non-solitary confinement of newly confined persons

(A) The plaintiff's assertion

Since Non-party 11 did not accommodate the plaintiff who was transferred to Chuncheon prison on June 11, 2004 to the ward for new inmates and violated Article 21 (1) of the Enforcement Decree of the Criminal Administration Act by shared confinement with non-newcomers, the defendant is obligated to pay 2,00,000 won to the plaintiff as consolation money for mental suffering.

(b) the sales board;

Article 8(1) of the Criminal Administration Act provides that "a new inmate who is a new inmate and is transferred to a correctional institution, etc." and Article 21(1) of the Enforcement Decree of the Criminal Administration Act provides that "a new inmate shall be confined to a ward for the newly confined person for the newly confined person for the purpose of 3 days from the date of his admission except for cases where disease or other unavoidable reasons exist." According to the overall purport of evidence Nos. 12 and evidence Nos. 15-2 of the Criminal Administration Act and the whole arguments, as the plaintiff was transferred to a Chuncheon correctional institution on Jun. 11, 2004, the plaintiff was confined to 6 units of the above 5th upper floor against the plaintiff's will, and all other newly confined persons were confined in the above ward. Thus, the act of the newly confined person who did not accommodate the plaintiff to a ward for newly confined person is erroneous in violation of Article 21(1) of the Enforcement Decree of the Criminal Administration Act, and the defendant has a duty to compensate the plaintiff for mental suffering due to the above unlawful act.

In regard to this, the Defendant: (a) the 5th upper floor of the Plaintiff admitted was originally designated and operated as the ward for newly confined persons; (b) at the time, Chuncheon prison had no time to separately operate the ward for newly confined persons in excess of 45% of the fixed number of confined persons; (c) therefore, there was an unavoidable reason for exception to the confinement of newly confined persons under Article 21(1) of the Enforcement Decree of the Criminal Administration Act; and (b) the Plaintiff transferred the newly confined persons from the Seoul detention house to the Chuncheon prison on August 16, 2002 after being selected as vocational trainee on December 18, 2002 and transferred them to the Chuncheon prison on June 11, 2004; and (d) the Plaintiff could not be deemed to have been “new confined persons” of Article 21(1) of the Enforcement Decree of the Criminal Administration Act because it was inevitable for the Plaintiff to not admit the new confined persons in the ward for more than 5 percent of the fixed number of confined persons, and thus, the Plaintiff cannot be deemed to have been admitted to the ward for more than 5 percent of newly confined persons.

(c) Illegal conduct in a net tent prison (an infringement of writing tickets and warden's right to interview);

(1) The plaintiff's assertion

On March 27, 2004, the Plaintiff filed an application with the Minister of Justice for a permit to write a petition and to write an information disclosure statement with the Minister of Justice and an interview with the head of prison. However, Nonparty 12 only allowed the applicant to write an information disclosure statement and did not take any measures with respect to the rest of the application. Since it is unlawful by infringing the prisoner’s right to write a writing and interview with the head of prison, the Defendant is obliged to pay the Plaintiff KRW 6,00,000 as consolation money for emotional distress.

(2) Facts of recognition

According to the purport of Gap evidence 28-1 through 8 and Eul evidence 29-1 through 3 (excluding the part not trusted in the future) and the whole arguments, the plaintiff applied for a permit to write a written petition and a written request for information disclosure to the Minister of Justice and an interview to the head of prison around March 27, 2004. However, around March 27, 2004, the non-party 12 can only report to the head of prison, report to the head of prison, report the remainder to the head of prison, and recognize the fact that the non-party 2 did not take any measures for the remaining request, and the non-party 12 is likely to believe the part of the evidence 28-1 through 8, and there is no other counter-proof.

(3) Determination

Article 33-3(1) of the Criminal Administration Act provides that "a prisoner may prepare documents, drawings, or write literature, academic studies, or other matters with the permission of the warden, unless it is specifically restricted by any other Act, as a matter of physical freedom, and freedom of expression," and Article 33-3(1) of the same Act provides that "a prisoner may do so with the permission of the warden: Provided, That this shall not apply where the contents thereof fall under any of the following subparagraphs: 1. Where it is likely to undermine the security and order of correctional institutions, etc., it is inappropriate for other correction. 2." The purport of the above provision is that a warden shall permit a prisoner to write a written application except in cases where there are exceptional reasons falling under any of the following subparagraphs, and therefore, the warden shall determine whether there is any reason for exception. In addition, Article 9 of the Enforcement Decree of the Criminal Administration Act provides that "a prisoner may apply for an interview with the warden for treatment and personal situation, and the warden shall find out some reasons for an interview with the warden's order of interview with the warden."

On March 27, 2004, the plaintiff applied for an application for a permit to disclose the petition to the Minister of Justice and an interview to the head of the prison. However, the non-party 12 reported only to the head of the prison and did not take any measures as to the remainder of the application to the head of the prison. The non-party 12's act of not having the head of the prison decide on whether to permit writing is illegal as it violates Article 33-3 of the Criminal Administration Act, and it constitutes an infringement by restricting the fundamental rights of the people guaranteed by the Constitution, not by law, and constitutes an infringement by restricting the basic rights of the people guaranteed by the Constitution. The plaintiff's act of examining the written complaint is illegal in violation of Article 9 of the Enforcement Decree of the Criminal Administration Act, Article 40 of the Correctional Officers' Duties Rule, and since it is obvious that the plaintiff was suffering from mental pain due to such unlawful act, the defendant is liable to compensate the plaintiff for damages caused thereby.

In this regard, the defendant asserts that ① a written petition is written in the form of a letter, which is deemed to have been approved by the warden in accordance with Article 3(1)1 of the Guidelines for the Operation of the written petition system, and if a petitioner submits it to the person in charge of prison affairs and correspondence without exception, it cannot be said that there is an infringement on the right to write a written petition, and that there is no permission for writing, and the plaintiff's assertion that the written petition is not prepared due to the absence of an interview. ② In the case of infringement of the right to write a written petition, it is necessary to inform that the interview is an attempt to dance the matters for which it is deemed not possible to obtain permission, and to waive it is one of the duties of the prison officers. The plaintiff's request for an interview with the applicant for the interview cannot be deemed to have been established as a crime of abandonment of his duties under the Criminal Act if it does not follow the procedure, and the plaintiff's request for an interview with the applicant for the interview cannot be deemed to have already been approved.

Article 3(1) proviso 1 of the Guidelines for the Operation of Prisoners’ Writing System (amended by Ministry of Justice No. 454, Jan. 28, 2002) provides that a prisoner shall be deemed to have obtained prior permission from the warden who has the authority to permit writing. However, Article 2 of the Guidelines separates the preparation of correspondence (No. 2) and petition, civil petition documents, etc. (No. 4) from the person who has the authority to permit writing. It cannot be deemed that the Plaintiff’s written petition to submit to the Minister of Justice in relation to the able examination, i.e., delivery of written petition to the Minister of Justice, and this belongs to civil petition documents, etc. under Article 2 subparag. 4 of the above Guidelines. Thus, the Defendant’s assertion that the petition is not subject to prior permission because it falls under written correspondence, and (2) considering that the Plaintiff’s request for an interview with the warden on March 13, 2004, it is difficult to conclude that the Plaintiff’s request for an interview with the prison officer cannot be accepted due to the above reasons.

3. Scope of damages.

Since it is clear in light of the empirical rule that the Plaintiff was suffering from mental pain due to the Plaintiff’s illegal confinement in the investigation room in the Seoul detention center, the unconvicted person in the Chuncheon detention room, and the infringement of the right to write and hold interview in the Chuncheon prison, the Defendant is obligated to do so in money. As to the consolation money that the Defendant is obligated to pay to the Plaintiff, the amount of consolation money should be paid to the Plaintiff is determined in full by taking account of various circumstances indicated in the argument in the instant case, such as health class, the circumstances and period of confinement, the details and period of the right prohibited during the investigation period, the degree of the Plaintiff’s damage, the circumstances surrounding the Plaintiff’s application for writing and holding of interview in the prison, the Plaintiff’s illegal confinement in the investigation room in the Seoul detention center, and the background and contents of the Plaintiff’s application for an interview in the prison, 1,000,000, 300,000,000 won in total, and 30,000 won in case of infringement of the right to write and hold in the prison.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1,60,000 won and damages for delay calculated at each rate of 5% per annum as stipulated by the Civil Act from June 25, 2004 to May 16, 2007, which is the date of the judgment of the court of first instance, and 20% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claims are dismissed as they are without merit. The part against the defendant ordering payment exceeding the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, and the plaintiff's claim corresponding to the revoked portion is revoked, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judge Cho Chang-chul(Presiding Judge) The highest court for the case