Plaintiff 1 and 26 others (Law Firm Jeong, Attorneys Masung-si et al., Counsel for the plaintiff-appellant)

Republic of Korea (Court of Law, Attorney Kim Jae-chul, Counsel for defendant-appellant)

October 11, 2013

1. The Defendant shall pay the remainder of the Plaintiffs, other than Plaintiffs 9 and 10, with 5% interest per annum from October 11, 2013 to November 8, 2013, and 20% interest per annum from the next day to the date of full payment.

2. All remaining claims of plaintiffs except plaintiffs 9 and 10 and claims of plaintiffs 9 and 10 are dismissed.

3. Of the costs of lawsuit, 90% of the portion arising between the plaintiffs other than plaintiffs 9 and 10 and the defendant shall be borne by the above plaintiffs, and the remainder shall be borne by the defendant, and the portion arising between plaintiffs 9 and 10 shall be borne by the plaintiffs 9 and 10.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiffs 5% interest per annum on each of the above amounts and 20% interest per annum from the date of the closing of argument to the date of the judgment of this case, and from the next day to the date of full payment.

1. Basic facts

(a) Illegal arrest and investigation;

Plaintiff 11 (Plaintiff 9 of the Judgment on Retrial), who was in the fourth and fourth year of the E-engineering of the same school as Plaintiff 1 (Plaintiff 1 of the Decision on Retrial), Plaintiff 18 (Plaintiff 16 of the Decision on Retrial), who was in the third and second years of the management department of the same school, and Plaintiff 24 (Plaintiff 22 of the Decision on Retrial of the same school (hereinafter collectively referred to as “Plaintiff 1, etc.”) who was in the second and second years of the same school, was in the first and second years of the year, and was arrested by the police officer without a warrant on April 197, in connection with Nonparty 5, the General Secretary General of the National Democratic Youth (hereinafter referred to as “Private Institute”) and Non-Party 6, who was in the first and second years of the third year of the year, who was in the second and second years of the foregoing Plaintiffs, and was in the process of taking charge of the removal of the new constitution and the Presidential Emergency Measures.

(b) Judgment of conviction and execution of sentence;

Plaintiff 1 et al. were indicted for committing a violation of subparagraph 1 of the Presidential Emergency Decree. On August 8, 1974, at the Emergency Decree Meeting established on January 8, 1974 pursuant to Article 53 of the former Constitution (amended by Act No. 9 of Oct. 27, 1980; hereinafter the same), Plaintiff 1 et al. was sentenced to imprisonment for 10 years; Plaintiff 11 et al. al. 8, 18, and Plaintiff 24 respectively for 7 years (amended by Act No. 7460, Oct. 22, 197).

Accordingly, on September 23, 1974, the Emergency High Military Conference established by the Presidential Emergency Decree No. 2, which was declared on January 8, 1974 by the above plaintiffs appealed and declared on September 23, 1974, sentenced the plaintiff 1 to seven years of imprisonment, five years of imprisonment, 18, and 24 to the plaintiff 11, and three years of imprisonment, respectively (74 non-high Military Court No. 22), and the judgment of the above Emergency High Military Court Council became final and conclusive as it is.

Plaintiffs 1, 314 days, 11, and 18 respectively, and 24 days respectively, were released on amnesty on December 23, 1979 and December 27, 1978, respectively.

C. Press reports from Plaintiff 1

On April 25, 1974, the “System of the National Democratic Youths Federation Case”, which was placed in the East Asia Island and the Dominary Dominary Dominary Dominary Dominc Dominc Dominc Dominc Dominc Dominc Dominc Dominc Dominc., was indicated as the Dominc Dominc Dominc Dominc Dominc

(d) Announcement of the results of investigation by the Development Committee which has verified the truth of the past events;

Then, on December 7, 2005, the Korea Development Committee (hereinafter “Korea Development Committee”) established under the National Intelligence Service’s ruling to conduct an investigation to ascertain the truth regarding the case of the Madematium and the Cheongsung (hereinafter “Korea Development Committee”) expressed its opinion that the pure anti-government demonstration should be distorted as the attempt of the People’s Revolution, in which the President directly left the country, and arrested and detained 1,000 people, and without a warrant, seven persons shall be sentenced to death penalty, and the number of persons shall be sentenced to imprisonment for life or for a long-term term of 10 years or more, and thus, the Defendants’ restoration of honor and the State-level appropriate compensation and compensation should be promptly held under the responsibility of the National Intelligence Service and other national agencies.”

E. Judgment

On November 19, 2010, Plaintiff 1, etc. filed a request for a review of the judgment rendered by the High Court of Seoul High Court of 2010No79, and the Seoul High Court rendered a final judgment on May 10, 2013 on the grounds that “The Presidential Emergency Decree No. 1 seriously limits the freedom of expression or the physical freedom, and the right to petition guaranteed by the Constitution, which is an essential element of democracy, and without meeting the trigger requirements, violates the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the bounds of the purpose without meeting the trigger requirements, and thus becomes null and void as it is in violation of the Constitution,” and “The Plaintiff’s investigator who was involved in an investigation, which was recognized that he was cruel in the process of investigation, committed a cruel act under Article 125 of the Criminal Act in connection with his duties, and thus, the evidence which was admitted as evidence of guilt in the judgment subject to a retrial, was inadmissible as a statement in the absence of discretion.”

【Ground of recognition】 The fact that there has been no dispute, Gap's entries in Gap's 1, 4 through 8, 10 through 12, 19, 22 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. Summary of the assertion

The Defendant asserts that, inasmuch as Plaintiff 1 and Plaintiff 18 consented to the determination of compensation under the Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement in connection with the instant tort and that a judicial compromise has been established in relation to damage incurred in relation to democratization movements pursuant to Article 18(2) of the Democratization Compensation Act by receiving compensation, Plaintiff 1 and Plaintiff 18 did not have a benefit in the protection of rights.

B. Determination

Since a judicial compromise has the same effect as a final and conclusive judgment and has the same effect as a final and conclusive judgment, if a compromise is made, the rights and obligations based on the previous legal relationship are extinguished. However, if a compromise is made, it does not affect only the legal relationship in dispute between the parties, i.e., the legal relationship in dispute, which has been disputed between the parties, and thus, it does not extinguish the previous other legal relations, which are not subject to the compromise, even if there is a judicial compromise, and it extends only to the judgment on the existence of legal relationship, which is the same effect as a final and conclusive judgment, which has the same effect as a final and conclusive judgment (see Supreme Court Decision 95Da3273 delivered on January 24,

Article 18(2) of the Democratization Compensation Act provides that "if an applicant consentss to the determination of the payment of compensation, etc. under this Act, a judicial compromise under the Civil Procedure Act shall be deemed to have been made on the damage incurred in relation to a democratization movement, and Article 20 of the Enforcement Decree of the same Act provides that "When an applicant who has received a notice of decision on the payment of compensation, a notice of decision on the payment of living support or a notice of decision on the restoration of honor pursuant to Article 18 intends to receive compensation, etc., he/she shall submit a written consent and a written application in attached Form 10 stating the following matters to the Compensation Committee, along with one copy of the written decision on the payment of compensation, written decision on the payment of living support or the original copy of the written decision on the payment of living support or the certificate of personal seal impression of the applicant."

However, the Democratization Compensation Act provides compensation, medical allowances, and living allowances as compensation for persons related to democratization movements. ① Article 7 of the Democratization Compensation Act provides that the calculation of compensation shall be made by applying the method of calculating lost profit in cases where death or missing is confirmed or injured. ② Article 8 of the same Act provides medical allowances for treatment, protection, and purchase of supplementary devices in cases where wounds are injured, the above medical allowances correspond to positive damages such as medical expenses, and ③ Article 9 of the same Act provides living allowances as subsidies to assist the livelihood in cases of confinement or dismissal. It is interpreted that Article 9 of the same Act does not provide that consolation money shall be separately paid for serious damage such as death, missing, and injury. Therefore, it is against the overall system of the Democratization Compensation Act, and thus, it should also be considered that the above living allowances are passive.

In full view of the purport of the argument as a result of the fact-finding inquiry conducted by the Deliberation Committee on September 2, 2013 regarding persons related to democratization movements and the Compensation Deliberation Committee (hereinafter “Deliberation Committee”), Plaintiff 1 and Plaintiff 18 applied for compensation or living allowances as persons related to democratization movements in relation to acts resisting to the remains and body system including the instant case. The above Plaintiffs agreed to receive a decision of payment of living allowances or living allowances from the Deliberation Committee, and Plaintiff 1 cannot be deemed to have received compensation or living allowances from the Deliberation Committee on May 29, 2006, and Defendant 1 cannot be deemed to have been established as compensation or living allowances from May 29, 2006, and compensation 49,614,590 won (business suspension compensation 2,070,860, 19,13,520 won for future treatment expenses, judicial treatment expenses 28,410,210 won) and Plaintiff 1 cannot be deemed to have been established as tort between Plaintiff 1 and Defendant 18.18

3. Establishment of liability for damages;

A. The defendant's tort

1) Illegals in criminal proceedings

Article 8 of the former Constitution provides that “All citizens shall have dignity and value as human beings, and the State shall have the duty to guarantee fundamental human rights as much as possible.” Article 10(1) of the former Constitution provides that “All citizens shall enjoy physical freedom. No person shall be subject to arrest, detention, seizure, search, examination, punishment, forced labor and security measures, except as provided by Acts.” Paragraph (2) of the same Article provides that “All citizens shall not be subject to adviser, and shall not be forced to make any unfavorable statement to them,” thereby guaranteeing fundamental human rights of the people and the duty of the State to protect the dignity and value of individuals as human beings and the freedom of physical freedom to be guaranteed under the Constitution. In addition, Article 309 of the former Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980) provides that “In the course of criminal investigation, confession of the accused, threat, unreasonable prolongedization of the body restraint of public officials, or in any other way, the Plaintiffs’ fundamental rights cannot be admitted as evidence during the process of arrest and emergency measures against them.”

2) Defamation

According to the above facts of recognition, the defendant also distributed to the media the contents that the plaintiff 1 was a member of the "private Cheongsung" as an organization whose substance was distorted as an anti-government organization, thereby impairing the honor of plaintiff 1 and his family members.

3) Since it is apparent in light of the empirical rule that Plaintiff 1 and his family members suffered considerable mental pain due to the above tort committed by the Defendant, the Defendant is obligated to compensate the remaining plaintiffs except Plaintiff 9 and Plaintiff 10 for damages pursuant to Article 2(1) of the State Compensation Act.

Although the Defendant asserts that the claim for damages cannot be acknowledged for the family members who were married or born after the release of the Plaintiff 1, etc., according to the overall purport of the pleadings, even though Plaintiff 1, etc. were released in the times and political situations of the Republic of Korea prior to the beginning of the so-called literacy government era in 1993, it can be recognized that the police officers or employees of the Central Information Department, etc. belonging to the Defendant have conducted illegal surveillance or inspection against Plaintiff 1, etc. and their family members. Accordingly, it can be recognized that the Plaintiffs who established a family relationship with Plaintiff 1, etc. after the instant case had suffered considerable mental pain

B. The part of claims filed by Plaintiffs 9 and 10

According to the evidence No. 15, Plaintiff 9 and Plaintiff 10 can be acknowledged as having not been born at the time of the investigation and trial against Plaintiff 1. Even if considering the present situation above, it is not sufficient to recognize that the above Plaintiffs were subject to surveillance and inspection even to the above Plaintiffs, and thereby, suffered emotional distress. The circumstances asserted by Plaintiff 9 (the accident was lost due to the loss of hearing ability, but the person became disabled as of now was not subject to proper treatment on the ground that he was a family member) are not sufficient to recognize causation between the Defendant’s tort and the Plaintiff 9’s mental damage. Accordingly, the above Plaintiffs’ claim for damages cannot be accepted.

C. The defendant's defense of extinctive prescription and the plaintiff's second defense

1) Summary of the assertion

The defendant asserts that the lawsuit in this case was filed more than 40 years since April 1974 where the plaintiffs asserted tort, and that the statute of limitations has already expired. Even if there was a disability that could not exercise their rights at the time, it shall be deemed that the cause of disability has ceased when Park Jong-hee regime was terminated ( October 26, 1979), when the government was launched ( February 26, 1993), when the government was launched ( February 1998), when the participating government was launched ( February 2, 2003), when the deliberation committee under the Prime Minister recognized the person related to the case as a person related to the democratization movement, or when the investigation and report was announced by the past private sector committee.

The plaintiffs asserted that the defendant's assertion of extinctive prescription constitutes an abuse of rights since it is difficult to exercise the right to claim damages against the state until the non-guilty verdict becomes final and conclusive through a retrial, and it is remarkably unfair or unfair to recognize non-performance of obligation

2) The completion of extinctive prescription

The claim for damages caused by tort against the State ceases to exist when it is not exercised for three years (Article 766 of the Civil Act) from the date the victim became aware of such damage and the perpetrator (Article 96 of the National Finance Act and Article 71 of the former Budget and Accounts Act before the repeal by Act No. 8050 of January 1, 2007) and five years from the date of the tort (Article 96 and Article 71 of the former Budget and Accounts Act before the repeal by Act No. 4102 of March 31, 1989). It is evident that the plaintiffs' lawsuit in this case was filed on July 12, 2012 after five years from the date of the defendant's tort.

3) Whether the claim for expiration of the statute of limitations constitutes abuse of rights

A) Relevant legal principles

The exercise of the obligor’s right of defense based on the statute of limitations is governed by the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. If an obligee is objectively unable to exercise his/her right, it is not permissible for the obligor to assert the completion of the statute of limitations as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2010Da1234, Jan. 27, 2011). Meanwhile, even in such a case, the obligee may prevent the obligor from exercising his/her right within a reasonable period where the obligee wishes to exercise his/her right from the termination of the cause of disability. Whether there was an exercise of right within a reasonable period of time should be determined by comprehensively taking account of the relationship between the obligee and the obligor, whether there was any special circumstance to delay the obligee’s exercise of right. As such, denying the completion of the statute of limitations based on the principle of good faith should be limited to 207Da127163, supra. It should be deemed that the statute of limitations should be extended to 2016.

B) the existence and termination time of objective obstacles

Although Plaintiff 1, etc. was prosecuted on the basis of the Presidential Emergency Measure No. 1, which was unconstitutional and invalid, and the probative value of evidence supporting the same was also insufficient, the fact that the court rendered a final judgment of conviction and rendered a heavier punishment is as seen earlier. The filing of a lawsuit against the State, the perpetrator, etc., in the past, in the court that rendered the erroneous judgment, prior to the final judgment that the previous conviction was erroneous by the court, cannot be reasonably expected from the perspective of the general public. Considering such circumstances, it should be deemed that there was an objective disability that the Plaintiffs could not exercise the right to claim damages of this case, until a new judgment of conviction stating that Plaintiff 1, etc. was erroneous.

C) Whether the exercise of rights was made within a reasonable period

As seen earlier, the judgment of innocence was rendered on May 10, 201, which was after the filing of the instant lawsuit on May 10, 2013 in the review case of the judgment of violation of the Presidential Emergency Decree against Plaintiff 1, etc., and the fact that became final and conclusive around that time is as seen earlier. Thus, the Plaintiffs may be deemed to have already exercised their rights before the lapse of objective

4. Scope of damages.

(a) The appropriate amount of consolation money;

In full view of all other circumstances revealed in the arguments of this case, consolation money is KRW 20 million for the victim himself, KRW 50 million for the parents, KRW 11,18, and KRW 24 for the victim, KRW 150 million for the victim himself, KRW 30,000 for his spouse and parents, KRW 30,000 for the spouse and parents, KRW 150,000 for the 30,000 for the 15,000 for the 150,000 for the 150,000 for the 150,000 for the 24th, and KRW 150 for the 150,000 for the 30,000 for the 15,000 for the 15,000 for the 10,000 for the 15,000 for the 10,000 for the 1,000 for the married or born family members after the 1.

1) Plaintiff 1

According to Gap evidence No. 15, at the time of 1974 when the tort of this case occurred, plaintiff 1 was married with non-party 2, non-party 3, non-party 4 (Plaintiff 3), plaintiff 4 (Plaintiff 4), plaintiff 5 (Plaintiff 5), plaintiff 6 (Plaintiff 6), plaintiff 7 (Plaintiff 7 of the judgment of review), and plaintiff 8 (Plaintiff 8 of the judgment of review), and on November 7, 1994, plaintiff 2 (Plaintiff 2 of the judgment of review).

A) Original consolation money

o Plaintiffs 1: 20 million won

o Non-party 2, Non-party 3: 50 million won

o Plaintiff 2 who entered into a matrimonial relationship after the instant case

o sibling 3, 4, 5, 6, 7, and 8: 20 million won, respectively.

(b) inheritance proceeds;

① Non-party 2’s death on April 23, 1984: The wife and his lineal descendant jointly inherit the consolation money of KRW 50 million, but if the inheritor succeeds to the family head of family, 50 percent of the inherent inheritance shall be added, and the wife shall add 50 percent of the inherent inheritance to the lineal descendant and the lineal descendant in the same family register at the time of joint inheritance.

o Nonparty 3: 8,33,333 won (=50 million won x 3/18)

o Australia inheritor 1: 8,33,333 won (=50 million won x 3/18)

o Children: KRW 5,55,555, respectively (= KRW 50 million x 2/18) for Plaintiffs 3, 4, 5, 6, 7, and 8

② Mad Nonparty 3’s death on April 6, 2009: Non-party 2’s consolation money of KRW 8,33,333 and unique consolation money of KRW 50 million inherited shall be jointly inherited by his lineal descendant.

o Children 1, 3, 4, 5, 6, 7, and 8: each of 8,333,333 won (= KRW 58,33,333 x 1/7)

2) Plaintiff 11

According to Gap evidence No. 16, as of March 9, 1981, plaintiff 11 was married with non-party 7, Mano 12 (Plaintiff 10 of the judgment on review), 14 (Plaintiff 12 of the judgment on review), 15 (Plaintiff 13 of the judgment on review), 16 (Plaintiff 14 of the judgment on review), 17 (Plaintiff 15 of the judgment on review), and 8 of this case.

A) Original consolation money

o Plaintiffs 11: 150 million won

o Non-party 7: 30 million won

o Plaintiff 12: 30 million won

o The wife Plaintiff 13 who entered into a matrimonial relationship after the instant case

o brothers and sisters 14, 15, 16, and 17: 15 million won, respectively.

(b) inheritance proceeds;

① Non-party 7’s death on November 30, 201: A wife and his/her lineal descendant jointly inherit the consolation money of KRW 30 million, but the wife shall add 50 of the share of inheritance for lineal descendant.

o Plaintiff 12: 6 million won (=30 million won x 3/15)

o Child 1, 14, 15, 16, 17, and Nonparty 8: each of the amount of KRW 4 million (=30 million x 2/15)

3) Plaintiff 18

According to Gap evidence No. 17, as of 1974, the family members of the plaintiff 18 were non-party 4, mother 19 (Plaintiff 17 of the judgment on review), 20 (Plaintiff 18 of the judgment on review), 21 (Plaintiff 19 of the judgment on review), 22 (Plaintiff 20 of the judgment on review), and 23 (Plaintiff 21 of the judgment on review).

A) Original consolation money

o Plaintiffs 18: 150 million won

o Non-party 4: 30 million won

o Plaintiff 19: 30 million won

o sibling 20, 21, 22, and 23: each of the KRW 15 million

(b) inheritance proceeds;

① Non-party 4’s death on January 5, 1990: The wife and his lineal descendant jointly inherit the consolation money of KRW 30 million; the family heir shall add 50 percent of the unique inheritance; the family heir shall add 1/4 of the inheritance portion for a woman who does not have the same family unit; and the wife shall add 50 percent of the inheritance portion for a lineal descendant within the same family unit at the time of joint inheritance with his/her lineal descendant.

o Plaintiff 19: 8,181,818 won (=30 million won x 6/22)

o Australia inheritor 20: 8,181,818 won (=30 million won x 6/22)

o Plaintiffs 21 and 18: 5,454,545 won, respectively (=30 million x 4/22)

o Plaintiffs 22, 23: each of 1,363,636 won (=30 million won x 1/22)

4) Plaintiff 24

According to Gap evidence No. 18, as of July 13, 1983, the plaintiff 24 was born to the non-party 9, the plaintiff 25 (the plaintiff 23 of the judgment of review), the non-party 10, and the plaintiff 26 (the plaintiff 24 of the judgment of review). The plaintiff 27 (the plaintiff 25 of the judgment of review) was born to the plaintiff 24.

A) Original consolation money

o Plaintiffs 24: 150 million won

o Plaintiff 25: 30 million won

o Plaintiff 26: 15 million won

o Plaintiff 27: 10 million won for children born after the instant case

(b) inheritance proceeds;

① Non-party 9’s death on September 13, 2005: 30 million won for consolation money shall be jointly inherited between the wife and his lineal descendant, but the portion of inheritance of the wife shall be added to the portion of inheritance of lineal descendant.

o Plaintiff 25: 10 million won (=30 million won x 3/9)

o Nonparty 10, Plaintiff 24, and Plaintiff 26: Each KRW 666,666 (= KRW 30 million x 2/9)

(b) Mutual aid for criminal compensation;

Article 5(3) of the Criminal Compensation Act provides that “When a person entitled to compensation under other Acts has received compensation for the same cause, the amount of compensation shall be determined after deducting the amount of compensation from the amount of compensation (Article 5(3)). In addition, in calculating the compensation, circumstances such as property loss, loss of profit that could have been gained during the period of detention as well as mental suffering, etc. shall also be considered (Article 4(2)). Thus, within such calculated criminal compensation, the amount of compensation includes positive and passive damage in general, as well as consolation money.

Therefore, when calculating the amount of compensation in the criminal compensation procedure by separating positive damages, passive damages, and consolation money, the amount of the criminal compensation corresponding to each amount of compensation should be deducted. However, in the criminal compensation procedure, when the amount of compensation was determined and paid in total without distinction by item of damage, the amount of the compensation should be deducted from the amount of the obligation that is most advantageous to the obligor by applying the general principle of appropriation of performance stipulated in the Civil Act mutatis mutandis. However, it is reasonable

According to the evidence No. 31, Plaintiff 1’s criminal compensation amounting to KRW 61,041,60, Plaintiff 14, and Plaintiff 18’s 63,374,400, respectively, and Plaintiff 24’s 61,624,800, respectively, can be acknowledged. Thus, the above criminal compensation amount should be deducted from the principal amount of consolation money of Plaintiff 1, etc.

C. Sub-committee

Therefore, the Defendant is obligated to pay the remaining Plaintiffs, excluding Plaintiff 9 and Plaintiff 10, the amount of money indicated in “the amount of discount” in the attached Form No. 10, and each of the above amounts, as sought by the Plaintiff, 5% per annum under the Civil Act from October 11, 2013 to November 8, 2013, which is the date of the closing of argument in the instant case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the remaining plaintiffs' claims except plaintiffs 9 and 10 shall be accepted within the scope of the above recognition, and each remaining claims shall be dismissed as they are without merit. The claims of plaintiffs 9 and 10 shall be dismissed as they are without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Han Young-dong (Presiding Judge)

1) The Emergency Measure No. 1 prohibits any act denying, opposing, distorted, or slandering the Constitution of the Republic of Korea, any act claiming, proposing, proposing, or opposing the amendment or repeal of the Constitution of the Republic of Korea, any act to spawn, distributing, or making a will secret, and any act prohibited as such, and any act or behavior to inform others by means of soliciting, instigating, advertising, broadcasting, news reporting, publishing, etc. (Paragraph 1 through 4). A person who violates or slanders these measures was punished by imprisonment (Paragraph 5) with prison labor for not more than 15 years without the warrant of a judge.