Claimant

Daejeon High Court Decision 2015No618 decided March 25, 2016

13,104,00 won shall be paid to an applicant for criminal compensation.

1. Facts of recognition;

The record reveals the following facts.

A. On May 19, 2015, after an applicant was arrested as a suspected violation of the Punishment of Violences, etc. Act (a collective, deadly weapon, etc.), the applicant issued a detention warrant on May 21, 2015 due to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.). On June 5, 2015, the applicant was prosecuted for a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) with the Daejeon District Court 2015 High Court 201 and 28 (Rape, etc.). On November 11, 2015, the court of the first instance acquitted the applicant of the charges of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) on the Punishment of Violences, etc. (Rape, etc.) and convicted the victim of the part of imprisonment with prison labor for three years.

B. On February 16, 2016, the claimant and the prosecutor appealed against the above judgment of the first instance, and each appeal was filed, and the claimant was released by the ruling of permission for release on bail on the part of the appellate court (this Court case 2015No618) pending in the appellate trial.

C. On March 25, 2016, the instant court was newly established with regard to the Plaintiff’s injury to carry dangerous articles as the reduced fact included in the instant facts charged, on the ground that Article 3(1) of the Punishment of Violences, etc. Act was deleted on January 6, 2016 and Article 258-2 of the Criminal Act that provides for the elements for the crime of special injury under Article 258-2 of the Criminal Act was established. This may be punished under Article 258-2(1) of the Criminal Act even in the case of bodily injury to carry dangerous articles of this case as the reflective measure taken from the fact that the previous penal provisions are excessive, and thus, the application of Article 3(1) of the former Punishment of Violences, etc. Act to the Defendant’s case in the first instance judgment was reversed on the ground that the application of Article 3(1) of the former Punishment of Violences, etc. Act was erroneous, which affected the judgment. The said judgment became final and conclusive on April 2, 2016.

D. As above, the claimant was detained for 273 days in the above criminal procedure from May 19, 2015 to February 16, 2016.

2. Determination

A. The occurrence of criminal compensation claim

In cases where not only a case where innocence is pronounced in the text of a judgment but also a case where a not guilty is judged on the grounds of the judgment, compensation may be claimed for the part which was found necessary for the investigation and trial of the part which was judged not guilty among pre-trial detention. However, by analogy of Article 4 subparag. 3 of the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”), the whole or part of the claim for compensation at the discretion of the court can be dismissed (see Supreme Court Order 2014Mo2521, Mar. 11, 2016).

In light of such legal principles, the fact that the judgment of innocence (guilty in the grounds) on the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against the claimant has become final and conclusive is identical as seen earlier. Since it is apparent that the claimant was detained for 273 days from May 19, 2015 to February 16, 2016 due to the criminal case in which the judgment of innocence became final and conclusive, the claimant may claim compensation for the period of detention pursuant to Article 2(1) of the Criminal Compensation Act, barring any special circumstance.

B. Scope of criminal compensation

1) Calculation of criminal compensation

Article 5(1) of the Criminal Compensation Act and Article 2 of the Enforcement Decree of the same Act provide that the minimum limit of compensation is five times the amount of daily minimum wage under the Minimum Wage Act of the year in which the cause for claiming compensation has occurred, and the minimum amount of daily minimum wage under the Minimum Wage Act of the year in which the cause for claiming compensation has occurred. The minimum amount of daily wage under the Minimum Wage Act of 2016, which was caused by the cause for claiming compensation of the instant claim (determination of acquittal), is KRW 48,240 per day, and the minimum amount of compensation in the instant case is KRW 48,240 per day, and the maximum amount of compensation in the instant case is KRW 241,200 per day (=48,240 per day

Taking account of all circumstances prescribed by Article 5(2) of the Criminal Compensation Act, such as the type and period of detention, the degree of loss incurred during the period of detention, mental suffering and physical damage, and intentional or negligent negligence in the police, prosecutor's office, and court, etc., the amount of compensation for the claimant is reasonable to be determined at KRW 80,000 per day within the scope of the claimant's assertion. As such, the amount of compensation for the claimant is KRW 21,840,000 per day (=80,000 per day x 273 days).

2) Limitation on criminal compensation

As seen earlier, Article 4 subparag. 3 of the Criminal Compensation Act, which provides for the court to dismiss all or part of the claim for compensation at its discretion, can be applied mutatis mutandis to the instant case, “where a person has received a verdict of innocence on part of concurrent crimes and a judgment of conviction on the other part,” which is a reason for the court to dismiss all or part of the claim for compensation at its discretion. The claimant was detained by a detention warrant due to the charge of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) in which the judgment of innocence became final and conclusive. Of the instant crimes, the part of the instant special injury was concentrated on the victim’s confession from the investigation stage to the investigation stage and the trial in the instant criminal case was in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) and the suspended sentence of imprisonment for the crime of special injury judged to be guilty, it is not reasonable to dismiss the entire claim in this case, and the petitioner should recognize compensation for the part deemed necessary only to have been found not guilty on the grounds of the judgment among the above criminal cases.

Furthermore, in light of the overall circumstances indicated in the record, such as the examination of the specific scope of criminal compensation and the weight of the convicted portion of the charges charged as the cause of detention against the claimant, it is reasonable to determine the amount of criminal compensation for the claimant as 13,104,000 won (=21,840,000 won x 0.6) out of the aforementioned amount of the amount of the compensation for detention recognized as above.

3. Conclusion

If so, the state is obligated to pay 13,104,00 won to the claimant as criminal compensation. It is so decided as per Disposition.

Judges Cha Jae-ho (Presiding Judge)