[1] Whether the restriction on a disciplinary action against a suspect who is likely to harm other prisoners belongs to the discretion of the prison warden (affirmative)

[2] Whether it is against the principle of proportionality to restrict a prisoner's exercise, which is a right granted to a general prisoner during the period (negative)

[1] Article 11 (3) of the former Rules on the Punishment and Disciplinary Action of Prisoners (amended by Article 2 (6) of the Addenda of the Enforcement Rule of the Correctional Institution Inmates Act on December 19, 2008) / [2] Article 145 (2) of the former Enforcement Decree of the Criminal Administration Act (amended by Presidential Decree No. 16759 of March 28, 200) (see current Article 133 (3) of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act); Articles 108 (13) and 112 of the Administration and Treatment of Correctional Institution Inmates Act

Plaintiff

Korea

Jeonju District Court Decision 2007Na6171 Decided January 31, 2008

The part of the judgment of the court below against the defendant concerning the claim for damages due to the prohibition of movement is revoked, and that part of the case is remanded to the Jeonju District Court Panel Division. The defendant's remaining appeal is dismissed.

We examine the grounds of appeal.

1. The part concerning the claim for damages due to the use of open structure toilets

According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence, and judged that the defendant has a duty to compensate the plaintiff for mental suffering due to the following reasons: the defendant, after compiling the adopted evidence, installed a toilet in which shielding facilities are insufficient in the confinement room of the relevant Gwangju prison, and used it to the prisoners; thus, the plaintiff, who was admitted in the relevant place, was exposed to part of body in the toilet use process; the smell or sound was leaked in person in the ward; and the prisoner suffered a sense of shame or humiliation due to dumping; and when considering the use of the fee, the plaintiff had no choice but to cause a sense of displeasure. In light of the records, the judgment of the court below is just, and there were no errors in the misapprehension of legal principles as to the cause of the claim, or in the misapprehension of legal principles due to insufficient deliberation

The ground of appeal on this part is without merit.

2. Part on the claim for damages due to the prohibition of exercise

A. Comprehensively taking account of the adopted evidence, the court below determined that the plaintiff was not obliged to conduct an appropriate outdoor exercise in consideration of the health conditions, etc., but the plaintiff did not conduct an outdoor exercise for 10 days after he was found to have been unable to conduct the outdoor exercise until September 26, 2005 due to the suspicion of non-compliance with legitimate instructions, such as refusing to enter the exercise on September 20, 2005, and was subject to a disciplinary investigation until September 26, 2005. The defendant was not obliged to conduct the above investigation for 10 days since it was difficult to conclude that "where a suspected suspect might harm other prisoners or visitors," under Article 11 of the Rules on the Rule on the Rule of Discipline and Disciplinary Punishment, the head of Gwangju prison notified the plaintiff on June 26, 2006 of the enforcement of disciplinary action of 10 days of the amount included in the seven days of the investigation period, and thus, the defendant was not obliged to pay consolation money to the plaintiff for 10 days after the completion of the investigation.

B. However, the above decision of the court below is hard to accept in the following respect.

The issue of whether to restrict the exercise of disciplinary action pursuant to Article 11(3) of the former Rules on the Punishment of Prisoners and Disciplinary Action (amended by Article 2(6) of the Enforcement Rule of the Correctional Institution Inmates Act, on December 19, 2008) is likely to harm other prisoners or visitors is difficult to be deemed illegal unless it is recognized that the exercise of disciplinary action is remarkably reasonable and it is abused by social norms as a discretionary act based on the judgment of the head of prison.

In addition, in order for a prisoner to maintain the security and order of a prison, it is inevitable to restrict his/her fundamental rights more strongly than other general prisoners, such as imposition of disciplinary action through the investigation process, and it is necessary to prohibit a person who is the most severe disciplinary measure from having contacted with the outside and establish the order of confinement by strict isolation. As such, imposing restrictions on exercise, which is the right granted to a general prisoner during the period of forfeiture, in addition to the confinement in the disciplinary room, shall be an appropriate means to achieve the above purpose. However, such restriction shall not infringe on the essential contents of the human freedom, and it shall be limited to the necessary and minimum restriction for accomplishing the above purpose.

According to the evidence and records adopted by the court below, after the Constitutional Court rendered a decision on the unconstitutionality of Article 145 (2) of the former Enforcement Decree of the Criminal Procedure Act (amended by Presidential Decree No. 16759 of Mar. 28, 2000; hereinafter the same shall apply) that the head of the Gwangju prison permitted the outdoor exercise once a week against the prisoner subject to the disposition of forfeiture, once a week, and once a week, the head of the Gwangju prison allowed the appropriate outdoor exercise in consideration of health conditions, etc. The fact that the disposition of forfeiture against the plaintiff was originally ordered to conduct the outdoor exercise on June 29, 2006, but the fact that the suspension period of forfeiture was not terminated on June 30, 2006 due to the lack of correctional officers of the Gwangju prison, the head of the Gwangju prison did not know that the outdoor exercise was completed on June 26, 2006.

In light of the above legal principles, facts acknowledged by the court below, and records, the Plaintiff’s ordinary living attitude, the Plaintiff’s appearance of the violation of the discipline of this case, the result, and the Plaintiff’s attitude after the violation of the discipline, etc., it is difficult to readily conclude that the Plaintiff’s prohibition of movement against the Plaintiff during the period detained in the investigation. The period during which the Plaintiff was admitted into the investigation is included in the entire period for forfeiture. The Plaintiff’s circumstance during which the Plaintiff did not conduct outdoor exercise during the period for forfeiture, the number of days during which the Plaintiff did not do so, the whole revised punishment after the Constitutional Court’s decision on the unconstitutionality of Article 145(2) of the former Enforcement Decree of the Criminal Administration Act, and the enforcement of the sentence wholly revised after the decision on the unconstitutionality of the Constitutional Court, and the treatment of prisoners, within 30 days, as one of the types of disciplinary measures (Articles 108 subparag. 13 and 14). In principle, it is difficult to view that the Plaintiff’s physical treatment of the Plaintiff during the period for forfeiture and physical treatment of the Plaintiff.

Therefore, with regard to the failure to give the plaintiff an opportunity for outdoor exercise, the court below's judgment that recognized the state liability for the performance of duties due to the intention or negligence of correctional public officials is erroneous in the misapprehension of legal principles as to the requirements for establishing state liability, which affected the conclusion of the judgment. Accordingly, the ground of appeal pointing this out is with merit.

3. As to the claim for damages caused by erroneous transfer

In a case where a different claim is declared by a single judgment, if one of the parties has appealed only for a certain amount without specifying the scope of the subject matter of a lawsuit, the claim falling under the scope of objection shall be transferred to the appellate court, unless there are special circumstances such as specifying the subject matter of a lawsuit (see Supreme Court en banc Decision 94Da20051 delivered on July 18, 196).

According to the records, the plaintiff stated in the purport of appeal that "the part against the plaintiff falling under the amount of money ordered to be paid under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 5 million won with 5% per annum from October 29, 2003 to the date of the judgment of the appellate court, and 20% per annum from the next day to the date of the full payment, and there is no evidence to specify the scope of objection. Thus, the plaintiff shall be deemed to have appealed all parts within the scope of objection. Thus, the claim for damages arising from the erroneous transfer of this case falling under the scope of objection shall also be deemed to be subject to the appellate court's judgment. Accordingly, the argument in the grounds of appeal disputing this point is without merit.

4. Conclusion

Therefore, the part of the judgment below against the defendant regarding the claim for damages due to the prohibition of sports is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)