Where a public official in charge of the interview of a lawyer who has been requested by the wife of a suspect detained or detained for violating the National Security Act in the National Security Planning Department refuses to meet without a written appointment of a counsel, the case holding that the State and the public official are liable to compensate for mental suffering suffered by an attorney-at-law from interference with the exercise of the right to interview;

Article 2 of the State Compensation Act, Article 750 of the Civil Act

Plaintiff

1 other than the Republic of Korea

1. The Defendants jointly and severally pay to the Plaintiff 1,00,000 won with 25% interest per annum from June 25, 1992 to the full payment.

2. The plaintiff's remaining claims are dismissed.

3. Five minutes of the lawsuit are assessed against the defendant, and the remainder is assessed against the plaintiff.

4. Paragraph 1 can be provisionally executed.

The defendants pay to each plaintiff 10,000,000 won with 25% interest per annum from the day following the sentencing of this case to the day of full payment.

Judgment on the main defense of Defendant Republic of Korea

Defendant Republic of Korea asserted that there was a defect that led to the instant suit without undergoing the procedure for compensation application under Article 9 of the State Compensation Act when the Plaintiff claimed damages against the State. However, according to the evidence Nos. 3 and evidence Nos. 4-1 and 2, the Plaintiff filed an application for compensation with the Busan District Compensation Council on December 16, 191, which is the same day as the date of the instant suit, and it can be recognized that the said application for compensation was dismissed on April 10, 1992, and therefore, the above Defendant’s main defense of safety is without merit.

Facts of recognition

The following facts are acknowledged in light of Gap evidence 1, Gap evidence 2-3, 4, 5, 7, 8, 10, Gap evidence 5-1, and 5-2, and the whole purport of the oral argument, and some of Gap evidence 2-1, 2, 6, 9, and Gap evidence 4-1, 4-2, and witness Kim C's testimony are not trustable.

1. On March 7, 191, the Plaintiff is an attorney-at-law belonging to Busan Local Bar Association, and was requested by Nonparty 2, the wife of Nonparty 1, who was detained in the Daegu District Office of National Security Planning that was a state agency of Defendant Republic of Korea, to be the number of counsel for Nonparty 1.

2. The Plaintiff applied for an interview with Nonparty 1 in the Daegu-gu District Office of National Security Planning in order to meet Nonparty 1 prior to being his defense counsel. However, as an investigator belonging to the National Security Planning Department, the Defendant’s jury who was in charge of the suspect’s meeting affairs, etc., was unable to meet without a defense counsel’s letter, and the Plaintiff refused to meet. Although the Plaintiff asserted that he had a criminal suspect’s right to interview and again requested a repeated meeting, the Defendant’s jury should be appointed as a defense counsel even if he did not know it, and the Defendant’s jury should refuse an interview with Nonparty 1, who was a public official, by abusing his official authority in relation to his duties, interfere with the Plaintiff’s right to interview with the knowledge that the Plaintiff would become a defense counsel by abusing his authority.

Judgment on the defendants' assertion

The Defendants asserted that, although Defendant Ew Disease demanded the Plaintiff to present an attorney's identification card and appointment of counsel at the time of the instant case, Defendant Ew Disease did not know whether the Plaintiff was an attorney-at-law or a person who was an attorney-at-law of Nonparty 1. Thus, the Defendants asserted that the act of refusing to meet was a legitimate duty.

However, according to each of the above evidence, it can be acknowledged that at that time, Defendant Ew Disease Day requested the Plaintiff to present a counsel certificate, and did not request the Plaintiff to present a counsel certificate; the Plaintiff first applied for an interview with Nonparty 3 detained in the Daegu District Office of National Security Planning at that time; Defendant Ew Disease Day sent it to the Public Prosecutor's Office; thus, Defendant Ew Disease Day cannot have an interview since it was sent to Nonparty 3; Defendant Ew Disease Day presented to the Defendant a certified copy of Nonparty 2's resident registration who was granted the Plaintiff to be a counsel from Nonparty 1's wife, and the female's seal, etc.; in light of this, Defendant Ew Disease Day refused an interview with the Plaintiff on the fact that the Plaintiff is an attorney-at-law, but did not allow the meeting according to the practice that controlled the Plaintiff's meeting with respect to the suspect violating the National Security Act. Therefore, the Defendants' above assertion is not acceptable.

Conclusion

Article 12 (4) of the Constitution of the Republic of Korea provides that "any person arrested or detained shall have the right to prompt assistance of counsel." Accordingly, "the defendant or the suspect may appoint a counsel." Article 30 (1) of the Criminal Procedure Act provides that "the legal atmosphere of the defendant or the suspect, his spouse, lineal relative, sibling, and the head of a household may appoint a counsel independently." Article 34 of the same Act provides that "a person who intends to become a counsel or a defense counsel may interview the defendant or the suspect under detention and give or receive documents or articles, and have a doctor provide medical treatment." Article 34 of the same Act provides that "The counsel or the suspect may have the right to interview and communicate with the suspect under detention, and the right to interview and communicate is indispensable for guaranteeing the guarantee of human rights of the detained suspect and exercising his right to defense, and the right to interview and communicate may not be restricted except as otherwise expressly provided for in Acts and subordinate statutes."

Therefore, the plaintiff is an attorney-at-law who intends to be the attorney-at-law of the non-party 1 (at the last time, the plaintiff was a counsel of the non-party 1) and was entitled to have an interview with the above Kim Tae, and as such, the plaintiff suffered a considerable mental suffering by obstructing the exercise of the visitation right by the illegal act of the defendant Lee Byung-il who is a public official without any justifiable reason, not only the defendant Lee Byung-il but also the State has a duty to compensate for the plaintiff's mental suffering due to the illegal act of the public official under his jurisdiction. Therefore, the consolation money for the requisitioned damage shall be determined at KRW 1,00,000 in consideration of the process of the case

Therefore, the defendants are jointly and severally liable to pay 1,00,000 won and damages for delay with 25% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 25, 1992 to the date following the judgment of this case (the plaintiff's claim). Thus, the defendants are jointly and severally liable to pay damages for delay with 1,00,000 won.

Judges Haeung-syun