[1] In a case where a police officer performs duties of suppression and investigation of a crime according to the determination that it is appropriate measures within the scope of his/her human and material capacity under specific circumstances, the standards for recognizing a State’s liability for compensation on the ground of omission for which no other measure is taken

[2] In a case where police officers were killed by their father who agreed to deliver money to an offender in the course of the police officer's search and seizure of hostages and arrest of criminals, the case affirming the State's liability to compensate for damages on the ground that the police officer's performance of duty cannot be deemed as significantly lacking reasonableness and reasonableness or significantly erroneous in reasonable judgment criteria

[1] Article 2 subparagraph 1 of the State Compensation Act, Article 2 subparagraph 1 of the Act on the Performance of Duties by Police Officers / [2] Article 2 subparagraph 1 of the State Compensation Act, Article 2 subparagraph 1 of the Act on the Performance

[1] Supreme Court Decision 95Da45927 delivered on October 25, 1996 (Gong1996Ha, 3406), Supreme Court Decision 98Da16890 Delivered on August 25, 1998 (Gong1998Ha, 2310), Supreme Court Decision 98Da18520 Delivered on October 13, 1998 (Gong1998Ha, 2655), Supreme Court Decision 2000Da57856 Delivered on April 24, 2001 (Gong2001Sang, 1202) (Gong2003Da490909 Delivered on September 23, 2004)

Plaintiff 1 and two others (Attorney Lee J-jin, Counsel for the plaintiff-appellant)

Korea

Gwangju High Court Decision 2004Na5371 Decided April 13, 2005

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Where a public official inflicts damage on another person by intention or negligence in violation of the statutes while performing his/her duties, the State shall be liable to compensate for such damage. The prevention, suppression, and investigation of a crime falls under the police officer’s duties (see Article 2 subparag. 1 of the Act on the Performance of Duties by Police Officers). Since a police officer delegated reasonable discretion based on a police officer’s professional judgment, where the police officer performs duties of suppression and investigation of a crime according to the judgment that it is appropriate measures within the scope of a police officer’s personal and material capacity under specific circumstances, the police officer’s intent and purpose of granting such authority to the police officer, the seriousness or imminent degree of damage inflicted on the citizen or citizens due to the police officer’s failure to take other measures, and whether the police officer could expect such result and take measures to avoid such result, it cannot be deemed a violation of the statutes that constitute a State’s liability for compensation on the ground that the police officer failed to take other measures (see Supreme Court Decisions 2000Da5849, Oct. 29, 1996).

2. A. According to the reasoning of the judgment of the court below, the court below found that the non-party 1 (hereinafter "the non-party 2") did not appear to have known the deceased's initial response to the deceased's waiting room, and the non-party 1 (the non-party 2) did not appear to have known the deceased's own seat at the location of the police station, such as the non-party 5 (the non-party 4) and did not have any contact with the police officer at the location of the police station at least 00 and did not have any contact with the deceased's non-party 2. The police officer was negligent in failing to take appropriate measures despite the fact that the police officer's absence of contact with the deceased's own seat at the location of the police station at the location of the non-party 2 and did not have any contact with the deceased's driver at the location of the police station at the location of the non-party 4 (the non-party 2).

B. However, according to the reasoning of the judgment below, it is difficult to find out the possibility of Non-Party 1’s mere theft report and female students on the deceased’s face because it was difficult to find out the situation of Non-Party 6’s own by comparing the situation with the evidence of the lower court, and it is difficult to view that the police officer did not normally spread the number of times or that search of the deceased’s seat was not properly conducted, and that it was difficult to find the police officer to find out the situation of Non-Party 7 and Non-Party 8’s personal seat and that it was difficult to view the situation of Non-Party 7 and Non-Party 5’s personal seat and that it was hard to view the situation of Non-Party 6’s personal seat and that it was hard to view that the police officer did not have any contact with the deceased’s personal seat at the time of their own time. On the other hand, it was difficult to find that there was no danger that Non-Party 5 and Non-Party 5’s personal seat might not have been opened at the scene.

Furthermore, examining the reasoning of the judgment below in comparison with the record, there is no circumstance that the police could be deemed to have neglected or failed to properly cope with measures after the plaintiff 1, who was the mother of the plaintiff 2, reported the kidnapping. Rather, it cannot be deemed that there was an error in performing duties, such as computer processing of vehicles, etc., in particular, even with respect to stolen vehicles, by notifying the case to the scene of the police station and the criminal police station, such as: (a) the dispatch of patrol units and the scene of the criminal police team; (b) the emergency call-up of all criminal police units; (c) the request for real-time location registration for tracking the cell phone dispatch of the plaintiff 2; and (d) the request for real-time location registration for tracking the cell phone dispatch by the plaintiff 2; and (c) the measures for blocking, inspecting, and searching the main paths; and (d) there was no error in performing duties.

In light of the aforementioned legal principles, in light of the nature of the case where the occurrence and development of the case are urgent and variable character robbery and the specific risk of damage predicted in the form, method, circumstance, etc. of the crime, etc., police officers belonging to the wooden Police Station may be deemed to have taken the best steps to arrest the suspect under the specific and individual circumstances, and the performance of their duties, such as the commencement and method of tracking, cannot be deemed to have significantly lacking rationality or reasonableness, or to have been considerably erroneous in the reasonable judgment criteria, on the ground that there was an inappropriate or complete omission in the exercise of police authority, etc., the act of performing their duties concerning the withdrawal of the hostage and the arrest of the suspect involved cannot be deemed to constitute a violation of the relevant statutes.

C. In addition, in this case, the State is liable to compensate for the death of the deceased during the process of searching for hostages and arresting criminals. Thus, police officers belonging to the Ganpo Police Station shall be deemed to have violated the duty to protect the deceased during the above process and to have violated the laws and regulations as it may be deemed that the police officers violated the duty of protection of the deceased and that it may be deemed

However, the reason why the deceased was involved in the instant case is that the criminal who was called Plaintiff 2’s Handphone was demanding the deceased to take cash directly. As long as the defendant could have the Plaintiff 2 confirmed whether he was the father of the deceased in advance, the police officer could not be deemed to have committed any error in having the deceased drive the car and directly go to the scene. In addition, during the process of the deceased’s taking the offender into custody, two police officers were allowed to go to go to the back seat of the deceased’s driver’s vehicle and to ensure safety by getting the police officers go to the back seat of the deceased’s driver’s vehicle. When the police officers get out of the vehicle for the purpose of arresting the criminal, they should go to the scene so that the deceased does not directly face the criminal, so long as the police officers belonging to the Bapo Police Station did not make their efforts so that they do not have any danger to the deceased’s damage in the process of spreading and arresting the crime in this case.

In addition, even though the police officer's duty and the police officer prior to the commencement of the operation were not the deceased's duty, and the police officer's duty did not intervene in the case of the deceased and the police officer's order was proper, the deceased left the scene as requested by the criminal, and then left the scene and re-in the scene of the crime, and then returned to the scene, contrary to the police officer's order that he returned to the scene. After the plaintiff 2 escaped from the knife, the police officer continued the act for arresting the criminal, and even after the escape from the knife, the police officer could be understood as the motive of the act as the father's leader because he could not cause harm to the plaintiff 2. However, in light of the police officer with professional experience and knowledge in the crime and the possibility that the plaintiff 1, who was his wife, could not use the knife gas gun, and did not have any danger and injury to the deceased's life and body.

Therefore, it is difficult to view that the deceased has a duty of care to take measures to protect the deceased in preparation for a case where the deceased is satisfe with his criminal, and even after leaving the scene, it cannot be held that the police can not be held responsible for the result of the deceased's being satisfed with the criminal, and thus, even if the police did not wear protective gear against the deceased, such circumstance cannot be a reason for the State to be legally responsible.

D. As seen above, the court below held that the police officers belonging to the Ganpo Police Station were negligent in performing the duties of this case, such as the search for human character and the arrest of the criminal involved in kidnapping, resulting in the death of the deceased. In so doing, the court below erred by misapprehending the legal principles on police officers' official acts, thereby making a judgment as to whether the State is liable for damages due to the violation of the duty to protect the deceased, and the grounds for appeal pointing

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)