Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Korea

June 24, 2005

1. The defendant shall pay to the plaintiff 10 million won with 5% interest per annum from June 12, 2002 to July 20, 2005, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 4/5 of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from June 12, 2002 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts may be acknowledged by adding up the whole purport of the pleadings to the statements in Gap evidence 1-1 through 3, evidence 5-48, 50, 51, 58, and 59:

A. Emergency arrest against the plaintiff and investigation by the prosecution

(1) On July 1, 1995, the Plaintiff was arrested on the charge of receiving a bribe from Nonparty 1 by an investigator in the Dong Office of Seoul District Prosecutors' Office around December 17, 1999. The Plaintiff was arrested on the charge of receiving a bribe from Nonparty 1 by an investigator in the Dong Office of Seoul District Prosecutors' Office around December 17, 199.

(2) The plaintiff was investigated into the Dong branch office of the Seoul District Prosecutors' Office. On December 8, 1999, around 21:30, the plaintiff made a statement to the effect that the non-party 1 was not aware of the facts charged. On December 9, 1999, at around 21:00, the plaintiff made a statement to the effect that the non-party 1 was not aware of the facts charged. On December 9, 1999, at around 21:0, the second interrogation was made with the non-party 1, and the non-party 1 was forced to make an interview with the non-party 3,00,000 won, and was used during the door-line so that the non-party 1 was unable to receive a request from the non-party 1. The non-party 1 and the non-party 3 was asked to provide information on the non-party 1 and the non-party 3 was not given his memory on December 10, 1999.

(3) The case holding that the head of Gun has accepted the request of Nonparty 1 to purchase the above forest land at the 0th of the first 6th of the 90th of the 5th of the 5th of the 5th of the 5th of the 1995, on the ground that the Plaintiff, who was in office of the 10th of the 195th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 19.

B. Judgment of the court of first instance against the plaintiff (Seoul District Court's Dong Branch of the Seoul District Court on May 23, 2009 Gohap442, 200 Gohap17, 200 Gohap18, 200 Gohap18 (Merger))

The court of first instance found the defendant guilty (five years of imprisonment and 50 million won of penalty surcharge) on the part of the defendant, although the requirements of emergency arrest are not satisfied, since the defendant was illegally arrested without a warrant of arrest without a warrant of arrest and was prepared under illegal confinement for 48 hours. Thus, the court of first instance judged that the non-party 1's statement by the prosecutor is inadmissible because it was made without a warrant of arrest, but it judged that the non-party 1's statement by the prosecutor was voluntary and reliable.

C. The Seoul High Court Decision 200No1402 delivered on November 21, 2000

The appellate court found the plaintiff not guilty on the ground that the second and third protocol of interrogation of the prosecutor's protocol was prepared in the state of illegal confinement, and thus, it is not admissible as evidence. The defendant's arguments concerning the background of partial confession are acceptable. The non-party 1's statements made by the prosecutor are extremely weak in light of the contents of the statement, the circumstances of the statement, and the situation before and after the statement, and other evidence are not doubtful or admissible.

D. Judgment of the appellate court against the plaintiff (Supreme Court Decision 2000Do5701 Decided June 11, 2002)

Although the prosecutor filed an appeal against the above appellate judgment, the Supreme Court dismissed the plaintiff's appeal on June 11, 2002 on the ground that there was no error of misunderstanding of legal principles in the appellate court's judgment as to the requirements for emergency arrest and the admissibility of evidence of the suspect interrogation protocol, and that the appellate court's rejection of the credibility of Non-party 1

2. The plaintiff's assertion

A. The prosecutor and the chief of the prosecutor’s office, who are public officials belonging to the defendant, failed to meet the requirements for emergency arrest under Article 200-3(1) of the Criminal Procedure Act against the plaintiff, but arrested the plaintiff and detained him/her in custody until a detention warrant is issued.

나. 수사검사는 위와 같이 원고를 불법체포, 불법구금하면서 원고에게 ‘ ○○군청을 쑥밭으로 만들겠다. 사돈의 재산까지 모두 조사하겠다’며 위협하고, 참여계장인 소외 5가 원고에게 ‘ 소외 1로부터 뇌물을 받은 사실을 자백하면 수뢰금액을 3,000만 원으로 해주고, 자수한 것으로 처리하며, 위 수뢰한 돈을 불우이웃돕기 등으로 사용한 것으로 해 주는 등 최대한 선처하여 주겠다’며 자백을 강요 또는 유도하여 원고는 제2회 피의자신문 및 제3회 피의자신문을 받으면서 소외 1로부터 3,000만 원을 받았다고 허위 자백을 하게 되었다.

C. The investigative prosecutor accepted the statement from Nonparty 1 to Nonparty 1, who denies the fact of offering of a bribe to the Plaintiff, stating that “I would, if any, be released on bail, be sentenced to less punishment,” and forced Nonparty 1 to the Plaintiff by force, suspicion, or interview with Nonparty 1. In return for Nonparty 1’s statement, the investigative prosecutor continued to prosecute Nonparty 1’s private document forgery and fraud case at the Seoul District Public Prosecutor’s Office’s Dong Office, 199 No. 63645, Nov. 30, 199, which had been investigating the case of offering a bribe to the Plaintiff, and forced Nonparty 1 to reverse Nonparty 1’s written diagnosis to be issued after Nonparty 1’s request for release, and continued to summon Nonparty 1’s opinion to the Plaintiff on bail on the first day. Nonparty 1’s statement to Nonparty 1, who had been investigating the case of offering a bribe for Nonparty 1, which could not be able to be able to have the first day after Nonparty 1’s request for release.

D. As such, the prosecutor of the investigation conducted unlawful emergency arrest, coercion and inducement of confession against the plaintiff, and the manipulation of evidence against the non-party 1 through meeting and pressure, and detained and prosecuted the plaintiff. As a result, the plaintiff suffered considerable mental suffering, such as the suspect status for about three months and the judgment of innocence against the plaintiff for two years and six months until the judgment of not guilty becomes final and conclusive, and thus, the defendant is liable to compensate for damages caused by the above official tort by the prosecutor of the investigation and the chief of the prosecution division who are public officials under his jurisdiction.

3. Determination as to the occurrence of liability for damages

A. Illegal Arrest

As an exception to the principle of warrant requirement, an emergency arrest is exceptionally permitted only when all the requirements of Article 200-3(1) of the Criminal Procedure Act are met. An emergency arrest that fails to meet the requirements is an illegal arrest as it is an arrest without a warrant based on legal basis. Here, whether the requirements of an emergency arrest are met or not should be determined based on the circumstances at the time of arrest, not based on the ex post facto examination, but on the basis of the situation at the time of the emergency arrest. In addition, in cases where a prosecutor or a judicial police officer’s judgment on whether the requirements are met is considerably unreasonable in light of empirical rule in light of the situation at the time of emergency arrest, such arrest is illegal arrest (see Supreme Court Decision 2000Do5701, Jun. 11, 2002, Supreme Court Decision 2000Do5701, Jun. 11, 200

The court below's decision that the defendant's emergency arrest warrant could not be issued by the judge of the district court because the defendant's suspect might destroy evidence, or could escape or escape. In this case, the defendant's emergency arrest warrant could not be issued by the judge of the district court because of an emergency arrest warrant, such as the suspect's discovery, or requires considerable time to request and issue an arrest warrant. Thus, the defendant's escape may be likely to occur during the above period. According to the evidence No. 1-3, No. 4-5, No. 5-48 of the evidence No. 9, the court below's decision that the non-party 1 could not request the plaintiff's arrest warrant from the plaintiff 1-2, and the non-party 1-2, the non-party 9-2, the defendant's non-party 1-2, the defendant's non-party 9-2, the defendant's non-party 9-2, the defendant's non-party 1, the present head of the 000,000 won,00 won.

Therefore, barring any special circumstance, the defendant is liable for damages caused by the above official tort by the investigation prosecutor who is a public official belonging to the defendant.

B. Confession, coercion and inducement against the plaintiff

In addition to the establishment of illegal arrest and illegal detention itself, it is difficult to deem that tort liability is established against the investigation itself solely on the ground that the investigation was conducted during the period of illegal detention, on the ground that the objection was an investigation of the illegal detention itself, and that the investigation itself constitutes an investigation during the period of illegal detention. The examination of evidence No. 5-26, 50, 51, 58, 7-5, 8-18, 47, and 9-9 of evidence No. 18, 18, 47, and 9-9 are insufficient to recognize the Plaintiff’s assertion, and there is no other evidence to prove otherwise.

Rather, the Plaintiff was forced to conduct an investigation into Nonparty 1 by Nonparty 50, 51, 7-2, and 47 at the time of Nonparty 1’s questioning, and the Plaintiff was forced to conduct an investigation into Nonparty 1 by Nonparty 2 at the time of Non-Party 9’s questioning. The Plaintiff’s investigation into Nonparty 1 at the time of Non-Party 1’s questioning, which was 0,000 won before Non-Party 1’s questioning. The Plaintiff was allowed to enter into an investigation by Non-Party 1 at the time of Non-Party 3’s questioning and questioning of Non-Party 9 at the time of Non-Party 1’s questioning and questioning of Non-Party 1 at the time of Non-Party 3’s questioning. The Plaintiff was not allowed to enter the investigation into Non-Party 1 at the time of Non-Party 9’s questioning and questioning of Non-Party 1 at the time of Non-Party 1’s 9,000 won.

C. The point of finding evidence manipulations through the hearing and pressure against Nonparty 1

(1) Facts of recognition

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap evidence 4-21 through 23, 30, and 5-6, 9, 11, 19 through 21, 23, 27, 28, 30, 35, 41, 42, Gap evidence 7-5 through 15, 17, 18, 20, 25, 28, 30, Gap evidence 7-31 through 40, and Gap evidence 8-18, 24 through 27, 30, 32, 35, 41, 41, 48, and 56-2:

(A) Investigation process against the plaintiff

① On November 4, 1999, Nonparty 1 issued a bribe of KRW 30 million to Nonparty 12, who is the head of an urban administrative city development plan and a working-level employee of ○○-Gun, on November 20, 1999, after having been arrested on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the fabrication of private documents. After having been arrested on November 4, 199 and sent it to the prosecution, Nonparty 1 stated that he provided a bribe of KRW 20 million to public officials from November 19, 199.

② The investigation prosecutor confirmed that the above urban development plan was established in ○○○-gun, and that the above public official was present, and the urban development plan in ○○-Eup was established in consultation with the public official of the Military Service from April 1996 under the name of “basic urban planning” in the Security Technology Foundation. Since August 1997, the development plan was established in consultation with the public official of the Military Service. After being made public through a public hearing by residents around August 1997, it was finalized through the deliberation of Gyeonggi-do. On January 1, 1997, Nonparty 12 retired and was conducting the land development-related project in ○○○○-gun area, and Nonparty 13 confirmed the fact that the public official was employed in sewage for the same reason as on October 1996.

③ The prosecutor of the investigation conducted a specific investigation into the situation where Nonparty 1 contacted Nonparty 12 and 13 through Nonparty 3. The prosecutor stated that Nonparty 2 was arrested on November 24, 199 and Nonparty 13’s emergency arrest to the prosecutor’s office on the 29th day of the same month and Nonparty 2 stated that “the head of the urban community, Nonparty 7 and the head of the planning office, the head of the Si/Gun, and the head of the Si/Gun, who was subject to the approval of the urban planning drawing, told Nonparty 1 to the effect that Nonparty 2 gave KRW 100 million to the head of the Si/Gun” on November 29, 1999. Nonparty 13 stated that “the head of the Gun office explained Nonparty 1 for the first time or urban planning matters at the Gun office,” and Nonparty 1 made a statement to Nonparty 1 that “the Plaintiff provided the Plaintiff with the approval of the alteration of the urban planning-related project in return for informing the Plaintiff of the approval of the change of the project.”

(B) Nonparty 1’s statement in the first instance and the appellate court

① Nonparty 1, after the first trial of the first instance, has reversed the statement made to the investigative agency, had the Plaintiff met or talked with the Plaintiff at the same time on the date of the first trial of the first instance, and had the Plaintiff asked the issue of change of Nonparty 4’s project implementer, but the Defendant did not obtain urban planning-related information from the Defendant, and the Defendant did not have obtained information on urban planning, and the Defendant did not want to cast money to the Defendant. The appellate court made a statement to the effect that he did not know that he did not want to cast money to the Defendant. The appellate court did not have made the first personnel of the Plaintiff at the time of the first personnel and the head of the urban administrative division Nonparty 7 at the military room, but did not have made a telephone call with the Defendant, or did not have received information from the Defendant.

② With regard to the reversal of the above statement at the fourth trial of the court of first instance, the investigative prosecutor stated that “pacter shall use a forged private document for the purpose of forging, 1 year old type, 6 months old type, and 1 year and 6 months old type, and H shall send its body now as bail. The fraud portion of 637,200,000 won which was lodged by the non-party 11 was in a state that may not be yet suspected, and once this portion is deducted and prosecuted only as a forgery of private document and a offering of bribe. On the contrary to the fraud portion, it was the most five years in cooperation with the investigation, and it was possible for the first instance court to take the issue of forging the private document and the offering of bribe only as a fine, and the prosecution's statement to the effect that the non-party 1 made a statement to the effect that the non-party 1 was a supposed during the trial of the prosecution and the prosecution's statement to the effect that the non-party 1 made the above prosecution's statement to the effect that he made it was not guilty.

(C) Investigations conducted by the prosecutor after the release on bail and the restoration of statements against Nonparty 1

① On December 7, 1999, Nonparty 14, the spouse of Nonparty 1, presented an opinion on Nonparty 1’s request for release on bail against Nonparty 1 to the court for the examination of defects and it is difficult to recognize Nonparty 1’s use of the relevant investigation document and fraud part against Nonparty 1’s request for release on bail. Nonparty 1 presented an opinion on permission that the crime of forging private documents is an offense with no penalty, and Nonparty 1 is a crime with severe urology, so it would be reasonable to allow Nonparty 1 to undergo a trial without release on bail on bail.

② On December 11, 1999, Nonparty 1 was released as bail and later returned on January 21, 200 to the court of first instance, which stated that the Plaintiff did not have any money to pay the money to the Plaintiff on the date of the first trial of the court of first instance. On January 21, 200, the prosecutor summoned Nonparty 1 to the 12-time investigation.

③ Meanwhile, as Nonparty 1 reversed his statement at the court of first instance, the prosecutor investigated Nonparty 16, etc. who borrowed money from Nonparty 15, Nonparty 1’s driver Nonparty 1, and Nonparty 16 who borrowed money from Nonparty 1, 2, and 15, and then reversed Nonparty 1’s statement in return for receiving KRW 150 million from the Plaintiff.

(D) The Plaintiff’s return to Nonparty 1

① Nonparty 1 voluntarily appeared at the prosecutor’s office after he was released on bail, and written a statement that Nonparty 1 was a false confession by coercion, such as intimidation, upon having access to his relative and his defense counsel, etc., and reported that Nonparty 1 was a reply to the declaration of conscience.

② Nonparty 1, through Nonparty 14 of his wife Nonparty 14 on the day following the third trial date of the first instance on which he was examined with respect to himself, was using the same as the successful bidder’s apartment in 150 million won in cash from Nonparty 17 and Nonparty 18’s model “Nonindicted 19”, who is the Plaintiff’s birth.

(3) Determination

In light of the above facts, it is difficult to believe that Non-party 1's statement on the grounds of reversal of the statement at the first instance court and the appellate court, consistent with the plaintiff's argument, is so stated due to the plaintiff's return (in particular, payment of KRW 150 million in return for the return of the statement). In light of the investigation circumstances against the plaintiff, it is reasonable and reasonable to recognize that the investigation prosecutor conducted an investigation of the plaintiff is guilty of bribery against the plaintiff. Since the investigation prosecutor summons and investigation of Non-party 1 after the prosecution of the plaintiff, it can be deemed that Non-party 1 received KRW 150 million from the plaintiff's side, and it can be deemed that the investigation prosecutor conducted an investigation to confirm the grounds of reversal of the statement. Thus, it cannot be deemed that the investigation prosecutor conducted a release permission with respect to Non-party 1, and there is no evidence to prove that Non-party 1 conducted an investigation and re-party 1's return of the statement after the reversal of the statement by Non-party 1, and there is no evidence to prove otherwise.

Therefore, this part of the plaintiff's assertion is without merit.

C. The point of illegal prosecution

However, in a case where the judicial police officer, who is an investigation agency, or a prosecutor, has a suspicion of a crime against a suspect and is likely to receive a conviction, a prosecution may be instituted by means of arrest or detention of a suspect according to the prescribed procedure. Thus, in an objective view, in a case where there are reasonable grounds for a judicial police officer or a prosecutor to suspect that the suspect is likely to receive a judgment of conviction, it shall be attributable only to the extent that, in light of the empirical and logical rules, there is no evidence sufficient to prove the existence of the crime through the subsequent trial process, even if the judgment of innocence becomes final and conclusive on the grounds that there is no evidence sufficient to prove the existence of the crime (see Supreme Court Decision 93Da20924 delivered on August 13, 1993).

According to the facts found above, the prosecutor of the investigation conducted an illegal emergency arrest against the plaintiff; the plaintiff was prosecuted for the charge that the plaintiff was delivered KRW 50 million from the non-party 1 and was convicted by the court of first instance at the appellate court and the court of final appeal; on the other hand, as seen earlier, it cannot be acknowledged that the investigation prosecutor forced or induced the plaintiff to make a confession, or forced the non-party 1 to make a statement, etc.; and in light of the investigation circumstances of the prosecutor's investigation against the plaintiff, the prosecutor of the investigation conducted an indictment against the plaintiff on the grounds that there is considerable reason to believe that the prosecutor might have a possibility of receiving a judgment of conviction against the plaintiff objectively, and thus, the emergency arrest against the plaintiff is unlawful; the judgment of the prosecutor who prosecuted the plaintiff by the appellate court and the court of final appeal cannot be affirmed in light of logical rules or empirical rules, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's assertion on this part is without merit.

4. The defendant's defense and judgment on the statute of limitations defense

According to Article 766(1) of the Civil Act, the defendant's claim for damages caused by a tort shall expire three years after the date when he becomes aware of the damage and the perpetrator. Even if emergency arrest against the plaintiff and its objection are illegal, such unlawful situation is terminated upon the execution of a warrant of detention. The plaintiff was aware of the investigation prosecutor and the chief of the prosecutor's office who is a public official belonging to the defendant who is the perpetrator at that time, and the above emergency arrest and its objection were aware of the fact that the defendant can file a suit against the defendant for damages for this reason (at the time of the decision of the court of first instance, it was clearly known that the damage was incurred in detail at May 23, 2000, which is the time of the decision of the court of first instance). Therefore, it is apparent that the lawsuit of this case was filed three years after the expiration of the statute of limitations, and therefore the damage claim of this case was extinguished by the statute of limitations.

However, under Article 766 (1) of the Civil Act, "the day on which the plaintiff becomes aware of the damage and the perpetrator", which is the starting point of the short-term extinctive prescription of the right to claim damages by tort, is the time when the harmful act was actually aware of the occurrence of the damage and the perpetrator, and it became known that the harmful act can claim damages as a tort (see Supreme Court Decision 96Da36159 delivered on February 14, 197). According to each of the evidence No. 1 (including the serial number) of the above emergency arrest, the prosecutor can find the fact that the above emergency arrest was illegal, while filing an appeal with the High Court, the Supreme Court, and the Supreme Court, and the appeal, it can be recognized that the above emergency arrest of the plaintiff was illegal, and it should be viewed that the above emergency arrest of the plaintiff was actually and completely known on June 11, 202, which is the time when the judgment of the Supreme Court became final and conclusive, and the defendant's assertion that the lawsuit in this case was raised on February 1, 2005.

4. Scope of liability for damages

(a) Calculation of consolation money;

The plaintiff is deemed to have suffered substantial damage to the deprivation of physical freedom by illegal emergency arrest. Accordingly, since it is obvious in light of the empirical rule that the plaintiff suffered considerable mental suffering through the above illegal confinement, the defendant is responsible for suffering money (in general, in case where an investigation and investigation agency committed an illegal act by investigation agency, if there were no illegal evidence such as confession collected by the illegal act, etc., the victim who was the suspect should be entitled to claim compensation not only for the damage directly incurred by the illegal act of the investigation agency, but also for the damage incurred by the arrest and prosecution committed by the illegal act, unless there are such special circumstances, it shall be deemed that the victim who was the suspect has the right to claim compensation not only for the damage directly incurred by the illegal act of the investigation agency, but also for the damage directly incurred by the illegal act due to the investigation and the illegal act, as recognized earlier, since the prosecution against the plaintiff cannot be deemed to have been unlawful, the plaintiff's damage directly suffered by the above illegal emergency arrest shall be limited to the damage directly caused by the above illegal emergency arrest).

Furthermore, with regard to the amount of consolation money that the defendant should compensate, the amount of consolation money shall be set at KRW 10,000,000, considering various circumstances shown in the arguments of this case, such as health team, the status and age of the plaintiff, the background of emergency arrest against the plaintiff, and the period of detention of the plaintiff.

B. Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 10,000,000 won and the amount equivalent to 20% per annum under the Civil Act from June 12, 2002 to July 20, 2005, which is the date of the adjudication of this case, to dispute about the existence and scope of the performance of this case from June 12, 2002 as the date of the above emergency arrest, which is the illegal act of this case, as the date of the above emergency arrest, and to pay to the plaintiff 10,000 won per annum from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and it is so decided as per Disposition.

Judges Cho Young-jin (Presiding Judge) Kim Young-hun