209 Ghana 482095 Damages, etc.

1. A;

Since it is a minor, the legal representative father B

2. B

Korea

January 27, 2011

February 10, 2011

1. The Defendant shall pay to the Plaintiff A 10,00,000 won with 3,00,000,000 won and 20% interest per annum from December 24, 2009 to February 10, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 50% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff A 25,00,000 won, 5,000,000 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the sentence, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Sexual crimes against Plaintiff A and occurrence of damage

(1) On December 11, 2008, Plaintiff A (the age of 8 at the time of the occurrence of the instant case) was sent to the toilet of a neighboring building by E approaching the foregoing Plaintiff in front of the Diplomatic Conference, which was approaching the Diplomatic Conference, in order to rape the said Plaintiff. E was forced to be exempted from the area and prompt, but the Plaintiff’s face was refused to do so, and the Plaintiff’s face was sent back to an emergency hospital at around 110:0,00,000, and the Plaintiff was able to see the Plaintiff’s timbered and sleeped, and the Plaintiff was raped. The Plaintiff reported to the 112 mobile phone with the mind of the Plaintiff, and the Plaintiff was transferred to the emergency room by the F Hospital at around 119:0,00.

(2) The Plaintiff A, due to the above sexual crime, suffered a string, heat, etc. from the inside, and escape from the outside of the body the organ in the clothes, was damaged to such an extent that the form of the inside and outside reproductive organs of the port and women is not recognizable. The Plaintiff A, as a result of the instant sexual crime, suffered a permanent injury or a string of the external trauma cutting of the outer part and the outer part, such as a string of a string between the resistance and the outer part, which cannot be distinguished by being combined with the outer part and the outer part.

B. The treatment and progress of the plaintiff A

(1) The Plaintiff A received an emergency operation on the day of the instant case, from the climatic climatic cliff and the climatic climatic cliff (e.g., the cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cli

(2) On December 17, 2008, Plaintiff A sent a mabrode fluent fluorine pain, and received the second reconcing of washing surgery and the second reconcing of the fluence caused by the reconcing fluence in the state of general anesthesia. Plaintiff A did not have any inconvenience, such as pressure at the operating department and the attachment level of the fluorine fluor, etc., so it did not come up and continued, and repeated a fluoring and inspection from time to time with the pain of the fluor, etc. Plaintiff A was in a state of lack of water surface and a progress from time to time due to severe clothes even on January 5, 2009.

(3) On January 9, 2009, Plaintiff A was discharged from the hospital, and even after the discharge, received medical treatment, and subsequently, was in need of stability medical treatment for more than 3 months from the date of operation, such as taking the place until the clinic of the surgery, and taking out stability, etc., and the period may be extended depending on the progress of the surgery and the existence of a merger certificate.

(4) On the other hand, Plaintiff A was receiving mental treatment from around December 16, 2008, and mainly complained of stress on the management of the surgery division (a time limit of 1 hour on the side side and the side and the gas should be cleaned and worn again), and Plaintiff A was subject to continuous mental and interview treatment due to stress disorder due to external stress disorder. Plaintiff A sent a severe depression on January 24, 2009, and was hospitalized again into the hospital, and it was not possible to receive counseling treatment for more than 30 minutes due to physical and mental difficulties at the time.

E was arrested on December 13, 2008, and was prosecuted on January 9, 2009 due to rape injury (Article 301 of the Criminal Act) and detained on January 3, 2009, and on September 24, 2009, the judgment of the court of first instance became final and conclusive on September 24, 2009, with imprisonment of 12 years, and 7 years, from the Ansan Branch of Suwon District Court (2009 Gohap6, 2009 Gohap1, 2009 Gohap247, 2009).

D. The plaintiffs' relationship

Plaintiff B is the mother of Plaintiff A.

[Ground of recognition] Unstrifed facts, Gap evidence 1, 2, 3-1, 2, 3, and 4-1, 2, 3, 19, 22, 35 through 42, 44, 53-2, 3, 57, and 59, each of the statements and images of evidence Nos. 53-2, 53-3, 57, and 59, and the fact-finding results of the fact-finding conducted by the court to the head of Gangnam-gu Strif Hospital, and the head of F Hospital; the purport of the whole arguments;

2. As to the prosecutor's illegal act during the investigation process

A. The parties' assertion

(1) The plaintiffs' assertion

(A) The prosecutor H affiliated with the Suwon District Prosecutors’ Office G (hereinafter “G”) conducted a summons and investigation without conducting a business trip even though the Plaintiff was hospitalized due to serious injury caused by sexual assault. While conducting a video recording investigation with the Plaintiff, H and I prosecutor, other than the prosecutor exclusively in charge of sexual assault, had the Plaintiff A make three times video recording statements and one time of direct questioning, and repeatedly make statements through a total of four times, such as a video recording statement, three times of video recording statements and one time of direct questioning.

(B) Since the plaintiffs suffered mental or physical pain due to the above tort committed by G prosecutors belonging to the defendant, the defendant is responsible for compensating for damages arising therefrom.

(2) The defendant's assertion

(A) The Plaintiff J, the father of the Plaintiff A, was summoned to the Prosecutor’s Office by having the Plaintiff A attend, and was unable to conduct a business trip due to the difficulty in installing appropriate video recording equipment and confidentiality of the victim.

(B) The first video recording conducted by the Plaintiff A at the time of the video recording is more than that of the audio recording, and it does not constitute a violation of the investigation process since the video recording by the Plaintiff was conducted three times as alleged by the Plaintiffs.

B. Determination

(1) Relevant statutes

(A) Article 21-2 (Exclusive Investigation System with Respect to Victims of Sexual Crimes)

(1) The Prosecutor General shall authorize the chief prosecutor of each district prosecutors' office to designate a prosecutor exclusively in charge of sexual crimes and have him/her investigate the victims, except in extenuating circumstances.

(3) The State shall provide education on professional knowledge necessary to investigate sexual crimes, investigative methods for the protection of victims, etc. to public prosecutors and judicial police officers referred to in paragraphs (1) and (2).

Article 21-3 (Taking, Keeping, etc. of Images)

(1) A public prosecutor or judicial police officer shall pay attention not to impair the victim's personality or honor or infringe on his/her private confidential information in the course of investigation, taking into careful consideration the victim's age, psychological condition, existence of a post facto disability, etc.

(2) In investigating the victim of a sexual crime, a public prosecutor or judicial police officer shall create an investigation environment so that the victim may make statements in a comfortable state, and the frequency of the investigation shall be required.

(3) If the victim under paragraph (1) is under the age of 16 or lacks the ability to discern things or make decisions due to any physical or mental disability, the contents and process of the victim's statement shall be recorded and preserved by using a video recording device, such as a video recording device: Provided, That such recording shall not be made when the victim or his legal representative expresses his/her intention not to want such recording.

(B) Rules on the Protection and Investigation of Human Rights (Enforcement Decree No. 556 of July 1, 2006)

Article 46 (Prevention of Secondary Damage) A prosecutor shall endeavor to ensure that the victim does not suffer additional damage in accordance with the following matters in the course of investigation and public trial:

1. Respecting the character and privacy of victims, and due consideration shall be given to the mental and physical suffering suffered by the victims;

2. It shall be ensured that the victim may not suffer any pain by repeatedly investigating the victim or applying for examination as a witness without justifiable grounds;

Article 51 (Protection of Victims of Sexual Violence, etc.) (1) In cases of investigating the victims of sexual assault, sex trafficking, and domestic violence (hereinafter referred to as "sexual assault, etc."), particular attention shall be given to the following matters:

1. Due care shall be exercised to prevent any damage to the victim's character or honor or any infringement on his/her private confidential information in the course of investigation, taking into account his/her age, psychological condition, existence of post-existence disorder, etc.;

2. The creation of an investigation environment and the frequency of investigations so that the victim may make statements in a comfortable state shall be at least necessary;

(2) Prosecutors' offices shall designate and operate exclusive prosecutors for crimes, such as sexual assault, and provide them with necessary education and training from time to time to time to persons engaged in investigation of crimes, such as sexual assault.

(2) Facts of recognition

(A) A prosecutor H, as the investigation of the instant sexual crime, summoned Plaintiff A for the purpose of the video recording investigation against Plaintiff A on January 7, 2009, the expiry date of the detention period of Plaintiff A, which was multi-party A. As such, Plaintiff A’s father, demanded the prosecutor’s office to dispatch the vehicle to Plaintiff A and start the hospital at around 10:0 am with Plaintiff A’s office and arrived at G at around 10:20 am on January 6, 2009 (the prosecutor H summoned Plaintiff A to the prosecutor’s office on January 6, 2009, which was the preceding day, but the procedure for obtaining permission to leave the hospital was delayed, and Plaintiff A and J had no taxi, and Plaintiff A and J returned to the hospital at around 6:45 o’clock, giving up attending the prosecutor’s office and returned to the hospital at around 6:45 o’clock).

(B) At the time, the prosecutor H and I, who was in charge of the Plaintiff’s video recording investigation, started with the first video recording examination around 10:35:00 a.m., and made a statement about the damage of the Plaintiff A for at least 10 minutes, and the prosecutor did not check the video recording device before the recording, and operated it without proper understanding of the device operation method. From around 11:0 a.m. to 10 p.m., the Plaintiff A again stated the content of sexual assault for at least 10 minutes.

(C) While the above prosecutor conducted a video product for the inspection of the video recording device and operated the video product, the prosecutor I again conducted an intensive investigation into the increase of the offender or sexual assault by the plaintiff A.

(D) The Plaintiff A again stated the fact of damage from 11:57:00 p.m. to 10 minutes on the video recording for the purpose of the video recording. The Plaintiff A and the J are waiting for at least 20 minutes at the Public Prosecutor’s Office for the examination of the video recording after the video recording was completed, and return to the hospital at least 10:0 p.m. on the 12:0 p.m. on the 10:0 p.m. on the 1

(E) At the time of the investigation, Plaintiff A was under the investigation with pressure on the operation part of the resistance and the sexual instruments, with a rhythrhm for a rectangular rhymhym.

(F) On the other hand, the prosecutor H and I did not have been designated as a prosecutor exclusively in charge of G sexual crimes at the time. [Grounds for recognition] The facts of no dispute, as described in Gap evidence 16-1, 2, and Eul evidence 6-1 through 6, and 9, as described in the evidence No. 16-1, 6-6, and 6-9, as well as witness J’s testimony, part of witness K’s testimony, and the purport of the whole pleadings.

B. Determination

(1) Occurrence of damages liability

(A) In light of the purpose and contents of the aforementioned relevant provisions, such as the Sexual Violence Act and the Human Rights Protection Investigation Rule, in investigating the victims of sexual crimes, an investigative agency is obligated to conduct an investigation, barring any special circumstance, by a prosecutor exclusively in charge of sexual crimes who has received education on expertise necessary to investigate sexual crimes and on the investigative method for the protection of the victims, to create an investigation environment in which the victims are able to make statements in a comfortable state in order to prevent secondary damage to the victims, and not repeatedly investigate the victims without any justifiable reason. In particular, if the victims are children, an investigation plan shall be formulated by taking into account the age, physical and mental condition, whether there is any disorder in the sexual crime, and to thoroughly prepare the investigation.

(B) In the instant case, as recognized earlier, the Plaintiff A, who was aged eight due to the instant sexual crime, suffered serious injury, such as the long-term escape from the body of the body, and serious damage to the resistance and the external reproductive organ of the female. On January 7, 2009, upon the prosecutor’s request for summons, the Defendant was in a state that he was in a state that he was in a state that he was in a state of being forced to take care of the outer part, etc., and was in a state that he was in a state that he was in a state of being in a state of being in a brue and a brue with severe clothes even on January 5, 2009.

② Although the investigative agency knew or could have known the above circumstances of the Plaintiff A, it did not conduct an investigation by the prosecutor H and the Plaintiff A in exclusive charge of sexual crimes without justifiable grounds, and conducted a video recording examination without properly inspecting the video recording device in advance, and caused the Plaintiff A, who was unable to sit down due to the stove of the resistance and the sexual flag, and the stove of the resistance, and the creation operation, repeated statement of the fact of damage, once every two hours because he/she did not cause inconvenience to the people of his/her superior position, without any justifiable reason.

③ If so, in investigating the victim of a sexual crime, the above prosecutor failed to establish the best investigation environment against the victim of the sexual crime, which is subject to the public prosecutor’s relevant provisions such as the Sexual Violence Act, and to perform the necessary minimum investigation duty. The above breach of duty is objective and apparent and has reached the extent that it is impossible to affirm rationality in light of the empirical and logical rules.

④ Since it can be sufficiently confirmed in light of the empirical rule that Plaintiff A and his mother, who is the Plaintiff’s mother, suffered physical or mental pain due to an unnecessary repeated investigation or video recording as seen above, the Defendant is liable to compensate for damages suffered by the Plaintiffs due to an act committed by a public official (public prosecutor) under the State Compensation Act, in accordance with the fact-finding process with respect to the head of the Gangnam Synish Hospital (the fact-finding process on the head of this court). In particular, in the case of sexual assault victims, such as this case, they did not reach one month from sexual assault victims, and in case of sexual assault victims who suffered serious bodily harm as in this case, repeated statements at the time of the instant case over several times before people who are strest without complete recovery from the surgery.

⑤ In contrast to the foregoing recognition, even if the video recording was repeated on two occasions other than three times as alleged by the Defendant, it shall be deemed that there is no change in the fact that the aforementioned prosecutor is responsible for the repetition of statements by allowing the public prosecutor to take care of the video recording device without properly inspecting the video recording device.

(2) The scope of damages liability

Furthermore, with regard to the amount of consolation money to the plaintiffs, it is reasonable to determine the amount of consolation money to be paid by the defendant to the plaintiff A as KRW 10,000,000 and KRW 3,000,000 for the prosecutor's illegal acts during the trial process on March 3, 200, considering all the circumstances shown in the investigation process of this case, such as the health class, the age of the plaintiff A, the degree of damage to sexual assault crime, the mental and physical condition at the time of the investigation, the degree of after-the-counter legacy, the frequency and method of investigation.

(a) Facts of recognition;

(1) At the police investigation stage, Plaintiff A stated that “A had a white head by putting the test colorer in the latter half of the 40th century, and did not use the body face, skin color, skin color, and eye, and passed the test color, the Plaintiff filed a report of the oral belief such as test color in the test color, and written a writing into English language in the test color.”

(2) The E and his defense counsel continued to deny the crime while serving in the appellate trial, while denying the crime, the E under trial is 50 middle and middle and middle, wearing a prudent, White head, and reported a white exercise, and thus, the Plaintiff’s statement on the issue of the above impression A applied for the witness in the extreme dispute over the lack of credibility. The appellate trial division received the above witness’s request from the E’s defense counsel.

(3) 원고 A은 항소심 제3회 공판기일인 2009. 6. 25. 비디오 중계장치에 의한 전자 법정에 증인으로 출석하여 E의 변호인으로부터 '범인이 사건 당시 안경을 쓰고 있었나, 무슨 색 잠바를 입고 있었나, 범인의 바지와 신발색은 어땠나, 범인의 나이가 몇 살 정도로 보였나' 등 주로 E의 인상착의에 관한 신문을 받았고, 항소심 재판장은 위 증인신문을 마치고 당일 변론을 종결하면서 선고기일을 2009. 7. 17.로 지정하였다.

(4) On the other hand, while arresting and investigating E on December 13, 2008, the police recorded the pages under investigation of E and sent it to the prosecutor's office by binding them on the investigation records in cld (the above cld contains the appearance that E did not wear a diameter on the head of verification color; hereinafter the same shall apply).

(5) On July 16, 2009, M, who is a public trial supervisor at the appellate court, filed an application for resumption of the pleading with the full bench by submitting as evidence to verify the instant weather ID and to prove that E did not wear a warning at the head of the examination at the time of the crime as stated by the victim’s statement.

(6) On July 22, 2009, the presiding judge of the appellate court resumed the pleading and concluded the pleading again, and sentenced the dismissal of the E on July 24, 2009. At the time, the protocol of the inspection of evidence states that “the Defendant does not wear a diameter at the time when the police was investigated, and that the color of head kinc is the black color. In light of the shape of the Defendant appearing in the image, the Defendant was suffering from a fluor, and was written as “BEALA ITIA” in English on both chests of the fluor in English. The appearance of the Defendant on the screen appears to be much more young than the appearance of the Defendant in the present court.

[Evidence] Facts without dispute, Gap evidence 3-2, 4-2, 10, 11-1 through 4, 12-1 through 5, 13, 14, 15-1, 2, 32, 33, 49, and the purport of the whole pleadings

B. The assertion and judgment

(1) The plaintiffs' assertion

(A) Even though the issue that E continuously denied a crime from the police stage at the appellate trial, and the issue that the issue was raised by the plaintiff A at the time of the crime, was that the increase of the offender stated by the plaintiff A at the time of the crime and the E in the process of the public trial, the public prosecutor at the appellate trial held that the public prosecutor at the appellate trial did not confirm in advance the weather of this case that can be verified by the appearance of E at the time of the crime and submit it as evidence, and the defendant was found and submitted as evidence on July 16, 2009, which was late after the closing of argument. At the time of the crime in the verification of the above weather, E's autopsy was confirmed to be without the head color and diameter at the time of the crime, and the judgment dismissing the appeal of E was pronounced on July 24, 2009.

(B) As above, the plaintiff Gap was summoned as a witness in the appellate court by gross negligence of the public trial M, which was an important evidence in the appellate court, and submitted as evidence later, without confirming in advance the weather of this case, and the plaintiff Gap was suffering from causing severe pain from E's attorney to bring about a serious suspicion about the appearance of the offender. Thus, the defendant is liable to compensate the plaintiffs for the tort committed by the public prosecutor M as well as the defendant.

(2) Determination

(A) One of the major issues discussed in the appellate trial process is that E’s own impression as claimed in the trial process and the offender’s impression as alleged in the judgment process was different, and the fact that the prosecutor M in the appellate trial and the prosecutor in the appellate trial submitted it later as evidence, which included the appearance of the appearance at the time of committing the crime of E, is recognized.

(B) However, in full view of the overall purport of evidence Nos. 4-2, 12-1, 3, and 20-1, 9, 24, 25, and 27-1, 27-2 of the evidence Nos. 4-2, 12-1, 24, 25, and 30, E continuously mentions the existence of the truth-finding crime and denies the crime. In addition, in the appellate court, it is different from the fact that E and its defense counsel expressed their intent to raise the offender in the resident registration image, as well as from the fact that the situation where the plaintiff selected the offender in the name of the offender in the resident registration image, and that the plaintiff Gap did not mention the sentence of the buck paper, there were no questions about the credibility of the plaintiff's statement in the appellate court, and that there was no need for the appellate court to determine whether the plaintiff's testimony and the defense counsel did not have any other important reasons to recognize the consistency of the plaintiff's testimony in the interrogation of the defendant's witness in this case.

Therefore, the plaintiffs' assertion on the premise that the appellate court did not adopt and dismiss the plaintiff A as a witness, if the plaintiff was submitted before the date of this case, is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay damages for delay at the rate of 10 million won per annum under the Civil Act from December 24, 2009, the day following the delivery day of the copy of the complaint of this case to February 10, 201, and 20% per annum under the Special Act on the Promotion of Legal Proceedings, etc. from the next day to the day of full payment, so the defendant is obligated to pay damages for delay at each rate of 10 million won per annum under the Civil Act from the day following the delivery day of the copy of the complaint of this case to December 24, 2009 to the day of the decision of this case to February 10, 201, and 20% per annum under the special Act on the Promotion of Legal Proceedings, etc.

Judges Lee Jin-jin