2015Na2028072 Compensation for damages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

Korea

Seoul Central District Court Decision 2014Gahap572715 Decided May 21, 2015

September 3, 2015

September 24, 2015

1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from December 15, 1979 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiffs 5% interest per annum from December 15, 1979 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Quotation of the first instance judgment

The reasoning for the court's explanation on this case is as follows: "No. 10 (Written Evidence No. 10)" in Part 6 of Part 10 of the first instance court's decision in the form of "No. 8 (Plaintiff E's school register), No. 9 (Plaintiff E's military register certificate), and No. 10 (Plaintiff E's written statement)". The plaintiffs' assertion is identical to the reasoning of the first instance court's judgment, except for supplementing the following judgment in the corresponding part, and therefore, it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Supplementary judgment

A. The plaintiffs' act of issuing Emergency Measure No. 9 of the President's assertion constitutes a tort against the Act and subordinate statutes under Article 2 (1) of the State Compensation Act, and constitutes an act of issuing Emergency Measure No. 9 of the President's Emergency Measure No. 9, investigation by investigation agencies, judge's act of trial constitutes a series of overall tort leading to the whole. Therefore, the defendant is obligated to pay consolation money to the plaintiffs who are plaintiffs A, E, and their families.

B. Determination

1) First, we examine whether the presidential emergency measure No. 9 constitutes a tort by an intentional or negligent act by a public official under Article 2(1) of the State Compensation Act.

Emergency Decree No. 9 infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the triggering requirements. Thus, prior to the cancellation or invalidation of Emergency Decree No. 9, this is unconstitutional and invalid as it is in violation of the due diligence Constitution. Furthermore, in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Decree No. 9, it is unconstitutional and invalid (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010; Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

However, even if Emergency Measure No. 9 was declared unconstitutional and invalid ex post by a court, the exercise of the presidential emergency measures based on the new constitution is a highly political act with high level of political nature, and the President, in principle, is responsible for the exercise of the national emergency measures in relation to the entire people, and does not have a legal obligation in response to the individual rights of the people. Thus, such exercise of the presidential measures cannot be deemed as a tort under the civil law in relation to each citizen (see, e.g., Supreme Court Decision 2012Da48824, Mar. 26, 2015).

Therefore, under different premise, the plaintiffs' assertion that the act of issuing the Presidential Emergency Decree No. 9 itself constitutes a tort by a public official's intentional or negligent act under Article 2 (1) of the State Compensation Act in relation to the plaintiffs cannot be accepted.

2) Next, we examine whether the presidential emergency action No. 9 was the act of issuing the Presidential Emergency Decree No. 9, the investigation by an investigative agency, the judge’s trial conducted, led to a series of overall torts.

As seen earlier, the President’s exercise of power over an Emergency Measure No. 9 cannot be deemed to constitute a civil tort in relation to each individual citizen. Even if an investigation agency arrested and detained a suspect without a warrant pursuant to Emergency Measure No. 9, which was in force at the time, and prosecuted the investigation, or a judge rendered a judgment of conviction by applying Emergency Measure No. 9, such act of official duty is stipulated in Article 53(4) of the New Constitution that “the Emergency Measure No. 1 and No. 2 shall be subject to judicial review.” As long as Emergency Measure No. 9 was not declared to be the Constitution and null and void, it is difficult to view that a public official’s intentional or negligent act constitutes a tort (see, e.g., Supreme Court Decision 2013Da217962, Oct. 27, 2014).

Therefore, under different premise, the plaintiffs' assertion on this part cannot be accepted, since it is difficult to view it as a series of overall illegal acts leading to the presidential emergency measure No. 9, the investigative agency's investigation act, and judge's judicial act as a whole.

3. Conclusion

Therefore, the judgment of the first instance is legitimate, and all appeals by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge shall dismiss the judge.

Judges Kim Gin-Jin-Jin disease, whose name and seal are impossible.

The presiding judge

Judges

Judges Hong Sung-sung