2013 Gohap 544515 Damage, Claim

Attached Table 1 is as shown in the plaintiff's list.

Korea

March 12, 2015

April 7, 2015

1. Of the instant lawsuit, the part of the claim for damages inherent in the Plaintiff A and B shall be dismissed.

2. The defendant shall pay to the plaintiffs, other than plaintiffs C, D, E, F, G, H, J., K, L, M, N,O, P, and Q, 5% per annum from March 12, 2015 to April 7, 2015, and 20% per annum from the next day to the date of full payment.

3. The plaintiffs C, D, E, F, G, H. I, J, K, L, M, N,O, P, and Q, and the remaining plaintiffs' claims except the above plaintiffs are dismissed.

4. Of the costs of lawsuit, 60% of the portion arising between the plaintiffs C, D, E, F, G, H, H, J, K, L, M, N,O, P, Q and the defendant shall be borne by the above plaintiffs, and the remainder shall be borne by the defendant, respectively. The part arising between the plaintiffs C, D, E, F, G, H, H, I, K, K, L, M, N, P, P, Q and the defendant shall be borne by the above plaintiffs.

5. Paragraph 2 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum from October 30, 1978 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. Basic facts

A. On October 18, 1978, the investigators belonging to the defendant were forced to act as the charge of violating the Presidential Emergency Decree (hereinafter referred to as the "Emergency Decree No. 9") for the protection of national security and public order, without a warrant, around October 9, 1978, around October 11, 1978, the investigators belonging to the defendant were forced to act as the charge of violating the Presidential Emergency Decree (hereinafter referred to as the "Emergency Decree No. 9") for the protection of national security and public order.

the detention warrant was issued.

2) In investigating into custody of the above plaintiffs, investigators forced confession by threatening them to make intimidation and verbal abuse, and did not sacrificing or locked.

(b) Judgment of conviction and execution of punishment;

1) On November 23, 1978, Plaintiff R and S were indicted as charges of violating Emergency Decree No. 9 by Seoul District Criminal Court 78Dahap714 on November 23, 1978. The summary was that Plaintiff R and V, who was enrolled in the social department of “UUUUUUUUU university, was manufactured by copying 1,00 copies of the non-explodedd articles that asserted the abolition of the Constitution of the Republic of Korea from May 12, 1978 to May 14 of the same month, and distributed them by inserting them by inserting them into the address extracted from the phone number division of Seoul City and each university and the representative of the university and the representative of the university and the Plaintiff R, S and X, etc., and distributed them by openly inserting up to 50 out of the 196th of June 19, 1978 and publicly inducing students to participate in the demonstration, and then distributing them out 80 out of the phone number of the government.

On February 23, 1979, the above court found the defendant guilty of all the charges and sentenced the plaintiff R and S to four years of imprisonment and suspension of qualification. The Seoul High Court, which was the appellate court, judged on June 29, 1979 that the above sentence is too heavy and reversed, and sentenced the plaintiff R and S to three years of imprisonment and suspension of qualification for each of them (hereinafter referred to as "Plaintiff R and S"). The above judgment became final and conclusive as the withdrawal of appeal on July 24, 1979, and the withdrawal of appeal by the plaintiff S on July 18, 1979, respectively.

2) On November 24, 1978, Plaintiff A, B, and T were indicted as charges of violating Emergency Decree No. 9 by the Seoul District Criminal Court 78 Gohap719 on November 24, 1978. The summary is as follows: “Plaintiff A was in the fourth year of the East University Department of U.S.; Plaintiff B was in the fourth year of the same university; Plaintiff B was in the fourth year of the same university; Plaintiff B was in the third year of the East University Department of Y, and was in the third year of the same university, Plaintiff A, B, Y et al. denied the Constitution of the Republic of Korea from May 3, 1978 to June 10 of the same year with Y, Y, Z et al. production of more than 1,200 representations of the contents that slander the emergency measures; Plaintiff B’s production of demonstration within the 197 U.S. on June 12, 1978 to 3197.

On January 12, 1979, the above court convicted the plaintiff A and B of all the charges and sentenced the plaintiff A and B of four years of imprisonment and suspension of qualifications, three years of imprisonment and suspension of qualifications, and three years of suspension of qualifications, respectively. The Seoul High Court, which was the appellate court, determined on June 20, 1979 that the above sentence is too heavy, and reversed the three years of imprisonment and suspension of qualifications, three years of suspension of qualifications, and two years of imprisonment and suspension of qualifications to the plaintiff T (hereinafter referred to as "the subject decision for reexamination on the plaintiff A, B, and T"). The above judgment was finalized after the withdrawal of each appeal by the plaintiff A, the plaintiff B, July 28, 1979, and the plaintiff T, July 31, 1979, and July 31, 1979, and each appeal by the plaintiff T.

3) The above Plaintiffs were released on August 15, 1979 upon the suspension of the execution of punishment, respectively, upon the sentence sentenced.

C. Finality of new judgment

1) On April 11, 201, Plaintiff R and S filed a petition for review of the judgment subject to a retrial with Seoul High Court Decision 201Do60, Seoul High Court. On June 5, 2013, the said court rendered a decision to commence a retrial on the grounds that the Emergency Measure No. 9 was unconstitutional and invalid from the beginning, and the said decision became final and conclusive around that time.

On July 26, 2013, the above court rendered a not-guilty verdict pursuant to the former part of Article 325 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9 applied to Plaintiff R and S is unconstitutional and invalid from the beginning to the beginning, and thus the defendant's case is not a crime. The above judgment became final and conclusive on August 3, 2013.

2) On March 24, 2011, Plaintiff A, B, and T filed a petition for review of the judgment subject to a retrial against Plaintiff A, B, and T with Seoul High Court Decision 201do34 (Seoul High Court). On July 30, 2013, the said court rendered a decision on commencing a retrial on the ground that the Emergency Measure No. 9 was unconstitutional since the beginning, and the said decision became final and conclusive around that time.

On September 10, 2013, the above court rendered a not-guilty verdict pursuant to the former part of Article 325 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9 applied to Plaintiffs A, B, and T constituted unconstitutionality and invalidation, and thus the defendant's case is not a crime. The above judgment became final and conclusive on September 18, 2013.

(d) Criminal compensation;

1) Plaintiff R and S filed a claim for criminal compensation with Seoul High Court No. 2013co95, and the above court rendered a decision on criminal compensation on November 5, 2013 to pay KRW 56,376,000, respectively, to Plaintiff R and S. The above decision became final and conclusive around that time.

2) Plaintiff A, B, and T filed a claim for criminal compensation with Seoul High Court No. 2013co137, and the above court rendered a decision on criminal compensation on November 26, 2013 to pay KRW 56,376,000 each to Plaintiff A, B, and T. The above decision became final and conclusive around that time.

E. The plaintiffs' relationship

1) AC, mother, Plaintiff AD, Plaintiff AE, AF, AG, AH, AI, and AJ were deceased on January 18, 197. On June 16, 1987, Plaintiff C married with Plaintiff R, and Plaintiff D and Plaintiff E were born respectively.

2) At the time when the Plaintiff S was detained as above, there were father’s family members: (a) MaM, MaN, MaN, MaP, AP, Q, and AR; (b) on January 10, 1989; and (c) on March 25, 2002, the net AO died, respectively, around December 1984. The Plaintiff F married with the Plaintiff, around 1981, and the Plaintiff G and the Plaintiff H were born, respectively.

3) Around the time when Plaintiff A was detained as above, there was a father’s net AU, mother, Plaintiff AV, Plaintiff AV, Plaintiff AV, Plaintiff AW, AX, and Y. The net AU died on March 10, 203. Plaintiff I married with Plaintiff A on September 16, 1985. Plaintiff J was born with Plaintiff A Z, Plaintiff K, and Plaintiff BB, respectively. Plaintiff J was born with Plaintiff B, while Plaintiff B was detained as above, there was father’s net BC, mother BD, Plaintiff BD, BE, BF, and BG. The net BC died on December 29, 196. Plaintiff B was married with Plaintiff B on May 11, 1982. Plaintiff B and Plaintiff NH were born, respectively.

5) Around the time when the Plaintiff T was detained as above, there was a father’s BJ, mother’s BK, sibling BK, Plaintiff BL, BM, BN, BO, BP, and Q. The net BJ died on February 3, 2006, Plaintiff P married with Plaintiff T on October 23, 1986, and Plaintiff Q Q was born.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 (including paper numbers; hereinafter the same shall apply), 2 through 10, and the purport of the whole pleadings

2. Determination as to the legitimacy of the part of the instant lawsuit claiming compensation for damages inherent in Plaintiff A and B

A. As to the part of the lawsuit in this case that the plaintiffs A and B sought unique damages due to the tort committed by public officials belonging to the defendant, the defendant shall be deemed to have reached a judicial compromise under the Civil Procedure Act regarding damages suffered by the above plaintiffs in relation to democratization movements pursuant to Article 18 (2) of the Democratization Compensation Act by consenting to the decision of payment of compensation, etc. under the Act on the Restoration of Honor to and Compensation to Persons Related to Democratization Movement (hereinafter referred to as the "Act on the Compensation for Democratization Movement"). Thus, the above part of the plaintiffs' claim in this case in this case is

(2) If the legislative purpose of Article 18(2) of the Commercial Act is to obtain compensation, medical assistance, and living allowances (hereinafter referred to as "compensation") from the Commission for 10 days after the date of the decision of the Commission's payment, including the contents of Article 2 subparag. 1 and subparag. 2(d), Articles 10(1), 18(2) of the same Act, Article 20 subparag. 3 of the Enforcement Decree of the Democratization Compensation Act (attached Form 10), the consent prepared and submitted by the applicant, and the contents of the written request, and to the decision of the Commission's payment of compensation money, it shall be recognized that the applicant has not obtained compensation money for 10 days after the date of the decision of the Commission's payment of compensation money, 20 days before the lawsuit, 30 days after the date of the decision of the Commission's payment of compensation money, and 10 days after the date of the decision of the Commission's payment of compensation money for 20 days after the date of the decision of the Commission's payment of compensation money.

Ultimately, among the instant lawsuits, the part claiming damages inherent in the Plaintiff A and B is unlawful as there is no benefit in the protection of rights.

3. The plaintiffs' assertion

A. In the meantime, even though it is difficult to see that BS former president is a national crisis situation that needs to cope with national emergency measures such as the exercise of emergency measures, the head of BS former president publicly announced the long-term authority and issued the emergency measures No. 9, etc. to suppress the opposing power of the former Constitution (wholly amended by Act No. 9 of October 27, 1980, and hereinafter referred to as the “former Constitution”). In light of the content, the emergency measures are unconstitutional measures that seriously infringe on the fundamental rights of the people, such as the warrant requirement and freedom of expression under the Constitution. Accordingly, the exercise of emergency measures by BS former president and its actions such as the exercise of duties by public officials intentionally violate the statutes while performing their duties, and the Defendant shall compensate for damages suffered by the Plaintiffs.

B. Preliminaryly, investigators, etc. affiliated with the Defendant were illegally arrested and detained without a warrant in the course of investigating Plaintiffs R, S, A, B, and T (hereinafter “instant parties”) who violated emergency measures, and committed cruel acts, including adviser, while restricting their visitations by attorneys and their family members. Each protocol of examination prepared without voluntariness was used as evidence of conviction in a trial, and was detained by the Defendant continuously under surveillance or preliminary examination after being released. Accordingly, the Defendant should compensate for the damages suffered by the Plaintiffs due to the unlawful acts committed during the course of investigation and trial.

4. Occurrence of liability for damages;

A. Relevant legal principles

Emergency Decree No. 9 does not only lack the requirements per se stipulated in Article 53 of the U.S. Constitution that served as the basis for the issuance thereof, but also infringes on the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom stipulated in the current Constitution and the current Constitution (see, e.g., Supreme Court en banc Order 201Hu689, 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, takes political responsibility in relation to 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, it cannot be deemed that the exercise of such power by the President constitutes a civil tort in relation to each citizen (see Supreme Court Decisions 2004Da33469, May 29, 2008; 2012Da48824, March 26, 2015).

In addition, Article 53 (4) of the Civil Code provides that "the act of judicial duties of a judge who has been convicted by applying subparagraph 9 of the Emergency Decree, which was enforced at the time of the arrest and detention of a suspect without a warrant and is conducting an investigation, or applying subparagraph 9 of the Emergency Decree, or the act of judicial duties of a judge who has

Inasmuch as the Emergency Decree No. 9 stipulates that the Emergency Decree No. 2 shall be subject to judicial review, and the Emergency Decree No. 2 does not declare that it is unconstitutional or invalid, it is difficult to deem that the Emergency Decree No. 9 constitutes a tort by a public official’

However, in full view of the contents of the facts constituting an offense charged, the existence of evidence to acknowledge the conviction, the grounds for the decision on commencing a retrial, the circumstances leading up to the person involved in the case to be acquitted and the reasons for the decision on commencing a retrial under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9, if there was no reason for innocence under the latter part of Article 325 of the Criminal Procedure Act, and there was a high probability of causation between the State’s act committed in the course of investigation and the conviction, and accordingly, the State’s liability for damages can be recognized (see Supreme Court Decision 2013Da217962, Oct. 27, 2014).

B. In light of the above legal principles, the plaintiffs' assertion that the exercise of the emergency measures by the President itself and the investigation and trial based thereon constitute tort is without merit. In light of the above legal principles, the plaintiffs' assertion that the exercise of emergency measures by the President BS former president and investigation and trial based thereon constitute tort against the plaintiffs is without merit.

C. The assertion of preliminary tort due to the investigation, punishment, etc. under subparagraph 9 of the Emergency Measures

1) Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence, the verdict of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act was finalized in the course of the reexamination of the instant parties, but it is highly probable that the causes of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act had

① At the time of being arrested as a violation of Emergency Decree No. 9, the instant principals were arrested without a warrant without being notified of the summary of the crime and the right to appoint counsel, and their family members were also arrested and detained. ② Despite the fact that the right to freely meet and communicate with the Defendant or the suspect’s defense counsel was guaranteed under the Unmanned Constitution, the instant principals could not meet and visit the defense counsel or his family members after the forced execution. ③ The instant principals were forced to make a confession without any arbitrity due to harsh conduct, such as adviser, assault, etc., under the circumstance that they were not informed of the right to refuse to make statements or the right to appoint defense counsel during the investigation process. ④ After that, even at the stage of being examined or written statement by the prosecutor, they seem to have continued to have made a confession of the same content. ⑤ The remaining seized materials are lack of probative value or are merely mere circumstantial evidence, and it is insufficient to find the Defendant guilty of the facts charged in the judgment on retrial against the instant principals.

2) A public official belonging to the defendant was arrested or detained, without complying with due process prescribed in the Constitution and the Criminal Procedure Act, and was found guilty by committing a harsh act, and was prosecuted and convicted on the basis thereof. Such a series of exercise of public authority is limited to the appearance of performance of official duties and constitutes tort. Accordingly, it is clear in light of the empirical rule that the principal and his family members suffered emotional distress.

Therefore, pursuant to the main sentence of Article 2 (1) of the State Compensation Act, the defendant is liable for damages suffered by the plaintiff's family members of R, S, T and this case.

3) However, with respect to Plaintiffs C, D, E, F, G, H, I, J, K, L, M, N,O, P, and Q, which established a family relationship after the release of the instant principal, in light of the fact that the new constitution, which served as the basis for Emergency Measure No. 9, was repealed and enforced at that time, was enforced and that there was a new constitution, there is insufficient evidence to acknowledge that only the result of the Plaintiff’s 18-2, the Plaintiff’s S, T, and A’s personal examination, has incurred specific mental damage that could be inflicted on the Defendant’s tort, and there is no other evidence.

In addition, the above plaintiffs' claim for damages is rejected.

D. Determination on the statute of limitations defense

1) The defendant raised the lawsuit in this case after 3 years from the date on which the plaintiffs knew of the damage or the perpetrator of the tort, or 5 years from the date on which the termination date of the tort, and thus, the extinctive prescription of the plaintiffs' right to claim damages against the defendant

The Plaintiffs’ right to claim damages against the Defendant is a right against the State for the payment of money, and is not exercised for five years pursuant to Article 96 of the former Budget and Accounts Act (amended by Act No. 1961, Dec. 19, 1961; repealed on Oct. 4, 2006) or Article 96 (2) of the current National Finance Act. However, it is evident that the Plaintiffs’ lawsuit was filed on September 17, 2013, which was five years from the date when the instant principal was released.

2) However, the exercise of the right of defense on the grounds of extinctive prescription is governed by the principle of trust and good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. Thus, in special circumstances where it is impossible to expect the exercise of the right due to a de facto disability that could not exercise the right before the completion of extinctive prescription, an obligor’s assertion of the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of trust and good faith (see, e.g., Supreme Court Decision 93Da27604, Dec. 9, 1994). Where a public prosecution was instituted based on evidence collected in the course of investigation by a State agency, and a judgment of conviction was final and conclusive, but a State agency’s claim for damages due to an illegal act, etc. was made final and conclusive in the retrial proceeding, the obligee cannot be expected to claim damages until the judgment of innocence becomes final and conclusive, and thus, the obligee’s assertion of the completion of extinctive prescription can not be deemed to exercise the right within a reasonable period (see, e.g.

As seen earlier, the Plaintiffs filed the instant lawsuit on or before September 18, 2013, from August 3, 2013, which became final and conclusive in the judgment of innocence against Plaintiffs R and S, and on or before September 3, 2013, which became final and conclusive in the judgment of innocence against the Plaintiff A, B, and T. Therefore, it is reasonable to deem that the Plaintiffs exercised their rights within a reasonable period for preventing the Defendant from raising the statute of limitations defense. The Defendant’s claim for the completion of the statute of limitations constitutes an abuse of rights against the good faith principle

5. The scope of the liability for damages (as to the part of the claim for damages of Plaintiffs C, D, E, F, G, H, J, K, L, M, N,O, P, and Q, other than the Plaintiff (hereafter referred to as “Plaintiffs” in this paragraph) and the part of the claim for damages of Plaintiff A, B’s net AU, and B

A. Whether the lost income loss was recognized

Since Plaintiff R, S, and T have delayed university graduation due to Defendant’s tort, Plaintiff R, S, and T seek payment of the lost income (Plaintiff R 4,478,089, Plaintiff S 10,000,000, Plaintiff T5,110,977) during the period in which university graduation was delayed.

According to the evidence Nos. 11-1 and 3, Plaintiff R entered U.S. Social Research University on March 1, 1975 and was removed from the university on November 14, 1975. On March 6, 1980, Plaintiff T graduated from the university on March 14, 1975, and was removed from the university on September 14, 1978, and graduated from the university on March 6, 1978. However, the above facts alone lack of evidence to acknowledge the employment of Plaintiff R, S, and T graduated from the university on August 30, 1984. However, there was no delay in the employment of the above Plaintiffs due to their graduation from university on February 1, 1979.

B. Amount of consolation money

In full view of the following circumstances revealed in the proceedings of the present case, the amount of consolation money to be paid by the Defendant is KRW 180 million for each of the plaintiffs R, S, and T, and KRW 40 million for each of the parents of the instant parties, and KRW 10 million for each of the brothers and sisters.

① The instant case is unlawful in that the State, which is obligated to protect the fundamental rights of the people, is the perpetrator and infringes on fundamental rights. ② The period of Plaintiff R, S, A, and T’s detention, including the fact that Plaintiff B was detained on 311 day, reaches 300 days. ③ The instant principal was suffering from considerable physical and mental pain due to long-term confinement and cruel acts committed by investigators. ④ The instant principal and his family members suffered considerable difficulty in social life after the Defendant’s tort. 6 as seen below, in exceptional cases where damages for delay of consolation money liability due to tort should be deemed to arise from the date of the closing of argument in the fact-finding court, which is the basis for calculating consolation money. As such, damages for delay before the closing of argument in logic may not be added to the damages for delay from the time of the establishment of consolation money liability to the time of the closure of argument in the instant case, the damages for delay of compensation for a considerable period from the time of the instant tort to the time of the closing of argument in the instant case would not be added at all.

(c) Inheritance relationship;

The share of inheritance of each Schedule in attached Table 3 and the corresponding column for inheritance-related materials shall be as specified in attached Table 3.

(d) Mutual aid for criminal compensation;

Article 6(3) of the Criminal Compensation and Restoration of Honor Act provides that "When a person who is entitled to damages under other Acts has received compensation for the same cause, the amount of compensation shall be determined after subtracting the amount of compensation therefor." As seen earlier, the decision to pay 56,376,00 won to the principal of this case as criminal compensation for the principal of this case becomes final and conclusive and the principal of this case has received the above compensation. Therefore, the amount after deducting the above compensation from the consolation money for plaintiffs R, S, and T is as stated in the corresponding column of "the amount of compensation" as stated in attached Table 3.

However, only the part claiming the portion of consolation money unique to the deceased AU and BC remains. The above amount of consolation money is a criminal defendant detained as the defendant, and there is a difference in the cause of the damage caused by the restriction on physical freedom, so the above amount of consolation money is not deducted from the above portion of consolation money.

E. When calculating consolation money for delay, all the circumstances that occurred at the time of the closing of arguments in the fact-finding court as well as the national income level and monetary value, which serve as the basis for calculating consolation money, should also be reflected at the time of closing of arguments. However, if it is deemed that considerable changes have occurred in comparison with the time of the illegal act, such as the monetary value at the time of the closing of arguments at the time of the conclusion of arguments at the time of the conclusion of arguments at the time of the illegal act and the time of the closing of arguments at the time of the conclusion of arguments, and that damages for delay have occurred at the time of illegal act, the problem of substantial excess compensation arises. Therefore, the damages for delay in such case should be deemed to have occurred on the date of closing of arguments at the time of the conclusion of fact-finding court, which is the basis for calculating consolation money (see, e.

From October 8, 1978 when illegal confinement of the instant parties began, to March 12, 2015, which was the date of the closing of the argument in this case, the monetary value, prices, and income level of the Republic of Korea significantly increased or decreased. The amount of consolation money against the Plaintiffs was also reflected in this situation. Therefore, it is reasonable to view that the damages for delay against the principal of consolation money of the Plaintiffs would have occurred from the date of the closing of argument in this case.

Therefore, the defendant is obliged to pay damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from March 12, 2015, which is the date of the closing of argument in this case, to April 7, 2015, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

6. Conclusion

Therefore, the part of the lawsuit of this case that claims the plaintiff A and Q are dismissed as unlawful. The remaining claims of the above plaintiffs and the plaintiff C, D, E, F, G, H, I, J, K, L, M, N,O, P, and Q are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The claims of the plaintiff C, D, E, F, G, H, H, I, J, K, L, M, N, P, P, and Q are dismissed as they are without merit.

The presiding judge, the senior judge;

Judges Park Jae-in

Judges or Jae-young