(영문) 서울고등법원 2017.6.16. 선고 2017누34270 판결

On December 6, 2010, the Defendant revoked the decision to dismiss an application filed by a person related to a democratization movement against the Plaintiff on December 6, 2010 (the Plaintiff filed an application for restoration of his/her reputation on December 27, 2004, and the Defendant dismissed all the Plaintiff’s application on December 6, 2010. The Plaintiff sought revocation of the decision to dismiss an application for restoration of his/her reputation against a judgment of conviction Nos. 1 and 2 as stated in the attached Table 1 among the above dismissal decision of the Defendant. As such, the subject of adjudication by this court is limited to the revocation of the decision to dismiss an application for restoration of honor against the judgment of conviction No. 1 and 2 among the judgment of conviction 1

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

A. The Plaintiff was convicted of a university student who was temporarily enrolled in the second grade of the Electronic Calculation Department at B University and was found guilty of each of the crimes listed in the separate judgment of conviction No. 1 (hereinafter “the first to fourth crime”) (in order, the Plaintiff was convicted of the first to the fourth crime).

B. On December 27, 2004, the Plaintiff filed an application for restoration of honor with respect to the first or fourth judgment on the ground that the Plaintiff constitutes “the person who was convicted of having committed a democratization movement” under Article 2 subparag. 2(d) of the former Act on the Restoration of and Compensation for Persons Related to Democratization Movement (amended by Act No. 11042, Sept. 15, 201; hereinafter referred to as “Act on the Compensation for Democratization Movement”), but the Defendant dismissed the Plaintiff’s application on the following grounds (hereinafter referred to as “the Defendant’s dismissal decision on the first or second judgment”).

The plaintiff opposed to the government's unification policy and inter-Korean exchange, and argued the unification of the federal system, which is the basic ideology of the Constitution of the Republic of Korea, denied the legitimacy of free democracy and the state, which is the basic ideology of the Constitution of the Republic of Korea, and even though it was difficult to provide relief for the truth-finding of the public security rule and the Gwangju School homicide case.However, in substance, it is an act belonging to an organization that argued the unification of the federal system as alleged in North Korea and jointly with its members, and it is an act of violence that deviates from the reasonableness of the means such as taking a stimulated disease at the time of participating in various student assemblies and inflicting an injury on the police officer in suppression.

C. On September 18, 2015, the Plaintiff failed to receive the service of the instant disposition, and filed an application for reexamination with the Defendant. On February 22, 2016, the Defendant dismissed the reexamination.

D. Meanwhile, on April 8, 191, among the judgment of the second instance, the Plaintiff participated in the instant detention case by police officers (hereinafter “the detention case by police officers”), but the president of the total student group, who was convicted, filed an application for restoration of honor with the Defendant regarding the conviction indicated in the attached Table 2, alleging that M constitutes “the person convicted on the ground of a democratization movement”, and the Defendant recognized M as a person related to democratization movement on July 11, 2005.

Facts without dispute over the basis of recognition, Gap evidence 1, 2, 8, Eul evidence 1 through 6, 9 through 14, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

As seen below, the instant disposition should be revoked as it is unlawful.

1) Since the Plaintiff excluded the judgment Nos. 3 and 4 from those subject to application for restoration of honor, it is a question whether the judgment No. 1 and No. 2 is related to democratization movements.

2) Demonstrations listed in the judgment of conviction Nos. 1 and 2 constitute a demonstration by students or citizens requiring democratization and peaceful unification, and constitutes activities of restoring and expanding the freedom and rights of citizens. Since violence against police officers listed in the judgment of conviction No. 2 constitutes a defense against illegal temples that had taken into account student trends, the Plaintiff, who was convicted of having been found guilty on the ground thereof, constitutes a democratization movement-related person.

3) Furthermore, the Defendant dismissed only the Plaintiff’s application for restoration of honor, despite having decided as a person related to democratization movements as to M who was convicted of having participated in the case of confinement of police officers, as stated in the judgment of the second-class crime, together with the Plaintiff, even though it was determined as a person related to democratization movements.

B. Determination

1) Article 2 Subparag. 1 of the Democratization Compensation Act defines a person who was convicted of a democratization movement as an action that contributed to the realization of the ideology and value pursued by the Constitution and to the establishment of democratic constitutional order and the restoration and extension of the freedom and rights of the people by resisting the authoritative rule that disturbs the basic order of free democracy and infringes on the fundamental rights of the people guaranteed by the Constitution on or after March 24, 1964 (Article 2 Subparag. 1). As for a person who was convicted of a democratization movement on the grounds of such democratization movement, active measures for restoring honor and restoration of honor shall be recommended to the President by the Commission and the Compensation Deliberation Committee may recommend special amnesty and restoration of rights to the President and request the relevant government agencies to delete or discard the previous criminal records (Article 5-3). Also, the types of (a) or (c) defined as a person related to a democratization movement as defined in Article 2 Subparag. 2 of the Democratization Compensation Act are related to the "divatization movement" in relation to his or her death, disease, injury, etc., or disadvantage.

2) In full view of the above provisions of the Democratization Compensation Act, the term "person convicted of a democratization movement" under Article 2 subparagraph 2 (d) of the Democratization Compensation Act means a person who has caused a violation of the positive legal system at the time of inevitable participation in the political, social, and cultural campaign to realize it with the motive or awareness of contributing to the establishment of democratic constitutional order by resisting the authoritative rule and contributing to restoring and expanding the freedom and rights of the people. In order for such a person to be regarded as a person, it should be objectively recognized that the democratization movement has an inherent purpose of criminal facts as indicated in the conviction itself, or that the motive for such conviction or the cause of such action has been caused.

3) In light of the following circumstances that can be recognized by comprehensively taking into account the purport of the entire pleadings in the above recognized facts, the part pertaining to the judgment of the first and second crimes, which determined that the Plaintiff was not a “person convicted on the ground of a democratization movement,” is unlawful as it deviates from and abused discretion.

A) Of the judgment of the first instance and the judgment of the second instance, the conviction on the criminal facts committed on April 9, 1991, among the judgments of the second instance, is a conviction, which inevitably resulted in a violation of the current positive law and system, in the process of contributing to the establishment of democratic constitutional order, and actively and actively participating in the political, social, and cultural campaign aimed at restoring and expanding the freedom and rights of the people by resisting the authoritative rule.

B) The facts constituting the crime of August 13, 191 among the judgment of the second instance, in relation to the unification issue, are related to the South Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea's Republic of Korea'

C) However, in light of the following circumstances, it is difficult to view that the case of confinement of police officers, among the judgment of the second conviction, is “the Plaintiff received conviction on the ground of a democratization movement” in light of the overall purport of pleadings, which can be recognized by comprehensively taking into account the above facts acknowledged:

① At that time, the Plaintiff, a police officer, who was observing the trends of students in the water level room after B University, was identified as a security officer, committed an assault, such as drinking the police officer’s entrance skill and chests several times, and selling the arms. Furthermore, the Plaintiff, a police officer, was detained by the police officer, leading the said police officer to the strike room at the National Assembly of Students at B University Center, and the Plaintiff, in the process, committed an assault, such as cutting the arms of the said police officer by hand.

As such, the Plaintiff exercised direct violence against police officers in the course of performing official duties.

② Although there is no room to regard the foregoing case as an act of resistance against the inspection in the unlawful course of the authoritative authority authority’s illegal acts, in light of the motive and violence committed by the Plaintiff, the degree of assault, and the circumstances of confinement, etc., it is difficult to view that the Plaintiff’s act was inevitably in violation of the positive law by resisting the authoritative rule that infringes on the fundamental rights of the people guaranteed by the Constitution, thereby inevitably violating the positive law.

③ As seen earlier, in the case of Ma, who participated in the case of confinement of police officers, he was recognized as a person related to a democratization movement. However, he/she committed a crime regarding a democratization movement other than the case of confinement of police officers. Since the extent and content of the Plaintiff’s participation in the case of confinement of police officers are more serious than M, the above confinement case does not constitute a violation of the principle of equality on the sole basis that the Plaintiff does not consider it as one of the facts recognizing the Plaintiff as a person related to

D) However, even if the case of confinement of police officers was excluded, it would suffice to deem that the Plaintiff was convicted of a democratization movement due to the second conviction judgment.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is just and reasonable, and the defendant's appeal is dismissed on the grounds of its merit.