2013 Maz. 143984 Baz.

1. A;

2. B

Korea

August 13, 2014

August 20, 2014

1. The defendant shall pay to the plaintiff A 30,000,000 won with 5% interest per annum from June 4, 2013 to August 20, 2014; 20% interest per annum from the next day to the day of full payment; and 20% interest per annum from the day to the day of full payment.

2. Plaintiff B’s claim and Plaintiff A’s remainder are all dismissed.

3. Of the litigation costs, the part arising between the Plaintiff A and the Defendant shall be borne by each party, and the part arising between the Plaintiff B and the Defendant shall be borne by the same Plaintiff

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff A 61,664,00 won and 30,000,000 won with interest rate of 20% per annum from the day after the delivery of the complaint of this case to the day of full payment.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to the evidence Nos. 1 and 2.

A. The plaintiff A was elected in the Department of School Support during the third year of C University in 1975. (b) The plaintiff A published an article criticizeing the government policy under the title "D" on August 19, 1975, on August 30, 1975, on the grounds that the plaintiff A was forced to proceed without a warrant for a violation of the Presidential Emergency Decree No. 9 (Presidential Emergency Decree for the National Security and the Protection of Public Order) (Presidential Emergency Decree No. 9) and was detained on September 5, 1975 and released on November 3, 1978.The plaintiffs were married in 1978.

2. Judgment on the main defense of this case

The defendant did not grant the plaintiffs' legal representative authority to act on behalf of the plaintiffs, so the lawsuit of this case is unlawful. However, according to the correction and accompanying documents of July 23, 2013, the plaintiffs' legal representative can be found to have been legally delegated the power of attorney from the plaintiffs. Thus, the defendant's main defense of this case is without merit.

3. Judgment on the merits

A. Determination on Plaintiff A’s claim

(1) The President’s decision on the national emergency power, which is exercised to ensure the existence of the State, should be respected when the occurrence of liability for damages occurs in a critical situation that would not be able to cope with by the exercise of power in accordance with the constitutional order at ordinary times. However, the national emergency power should be exercised within the minimum necessary extent to eliminate the direct cause of the crisis when the State is in a serious crisis. Accordingly, it must conform to the requirements and limits for the issuance of the Constitution that prescribes the national emergency power, and in this respect, the emergency power stipulated in Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the “new Constitution”) shall not be an exception. The new Constitution also has a serious financial or economic crisis in relation to the exercise of the emergency power under Article 53(1) and (2) of the former Constitution, or there is a need to limit, “when it is in danger of serious threat or threat of national security or public safety and order.”

However, the contents of the Emergency Measure No. 9 issued based on this issue are as follows: 'act of openly disseminating or distort facts'; 'act of denying, opposing, distort, or distort the Constitution of the Republic of Korea by means of public strike, such as assembly, demonstration or newspapers, broadcasting, drawing, and telecommunications; 'act of claiming, instigating, or publicizing the amendment or abolition thereof; 'act of openly harming the student's assembly, demonstration, or political participation, or other measures except for formal and non-political activities, with the instruction and supervision of the school authorities; 'act of openly referring to the student's assembly, demonstration, or political participation, or other measures (each subparagraph of paragraph 1); 'an act of publicly harming such measures' by broadcasting, reporting, or other means; 'an act of producing, distributing, distributing, possessing, or displaying representations of such contents; 'an act of violating the Constitution of the Republic of Korea' or ‘an act of openly harming the student' is prohibited by the competent Minister or a person who violates the warrant of the competent Minister at the time of search or seizure.

In addition, the contents of the Emergency Measure No. 9 are seriously restricting the freedom of expression or the freedom of body and the right to petition guaranteed by the Constitution, which is an essential element of democracy, so that the State may guarantee to the maximum extent the fundamental human rights of the people, notwithstanding the provisions of Article 8 (Article 10 of the current Constitution), Article 18 (Article 21 of the current Constitution), and Article 10 (Article 12 of the current Constitution), Article 14 (Article 16 of the current Constitution), and Article 23 (Article 26 of the current Constitution) of the current Constitution, which restricts the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution by denying the principle of rule of law through the full exclusion of the warrant. Furthermore, Article 23 (Article 26 of the current Constitution) of the current Constitution is prohibited.

As such, subparagraph 9 of the Emergency Decree infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the requirements for its trigger. Therefore, before the Emergency Decree No. 9 was cancelled or invalidated, this is unconstitutional and invalid in violation of the decent Constitution, and furthermore, it is unconstitutional and invalid even in light of the current Constitution that has the provisions guaranteeing the fundamental rights infringed by Emergency Decree No. 9 (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013). In this case, the Defendant’s public official who belongs to the Defendant illegally arrested the Plaintiff without the Plaintiff’s warrant based on subparagraph 9 of the Emergency Decree and detained the Defendant until the suspension of indictment is released by the Defendant’s public official without the Plaintiff’s warrant constitutes unconstitutional tort committed by the State that caused the offender, and barring special circumstances, the Defendant is obliged to compensate for mental suffering caused by the Plaintiff’s intentional or negligent act committed by the public official under its jurisdiction.

The plaintiff A suffered from suspicion of coercion, etc., continuous private surveillance, and disadvantage in the military service after the suspension of indictment, etc., and the defendant is also liable for damages. However, there is no evidence to acknowledge this, and the above part of the plaintiff's assertion is not accepted (this part of the plaintiff's assertion is not related to Emergency Decree No. 9, and the right to claim damages related thereto has expired).

(2) As to the defendant's defense of extinctive prescription, the defendant filed the lawsuit of this case on May 27, 2013 after three years from the time when the plaintiff was detained illegally, and thus, the defendant's liability for damages was extinguished by extinctive prescription. Accordingly, the plaintiff A asserted that the defendant's defense of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith.

B. According to the above facts, Plaintiff A’s right to claim compensation for damages against the State for payment of money has expired unless it is exercised for five years pursuant to Article 96(2) of the National Finance Act. According to the records, it is evident that Plaintiff A’s lawsuit of this case was filed on May 27, 2013 after five years have elapsed since November 3, 1975. However, the obligor’s exercise of the right to 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 the Civil Act, and thus, the obligor’s exercise of the right to claim compensation for damages was impossible or considerably difficult before the expiration of the statute of limitations, or when the obligor acted to believe that such measures are unnecessary, or when the obligee was unable to exercise his/her right objectively, or when the obligor did not exercise the right to claim compensation for damages within 20 years after the expiration of the statute of limitations, it should be deemed that the obligor would not exercise the right within 20 years of extinctive prescription under the Civil Act.

D. However, as seen above, although the arrest and detention of a judge without a warrant violates the State’s duty to guarantee fundamental rights and the warrant requirement at the time, Article 53(4) of the former Constitution provides that “emergency measures referred to in paragraphs (1) and (2) shall not be subject to judicial review,” the Supreme Court has made a ruling that the above emergency measures are based on the former Constitution, and thus cannot be subject to judicial review, and thus, it was possible to bring an objection against the unconstitutionality of the above measures (see, e.g., Supreme Court en banc Decision 74Do3510, Mar. 22, 197; 77Mo19, May 13, 197; 74Do3509, Feb. 25, 197; 749Do4797, Apr. 17, 1975). Thus, the court below’s decision that found the above emergency measures against the plaintiff 2, who was not subject to judicial review.

(3) Scope of damages liability

Determination of the amount of consolation money

From August 30, 1975 to November 3, 1975, Plaintiff A was illegally detained for 66 days from August 30, 1975, and therefore, it appears that his academic life was severed and separated from his family and suffered a considerable mental suffering. However, the above illegal act does not seem to have a serious impact on Plaintiff A’s social life due to the serious aggravation of Plaintiff A’s academic background and career, and it does not appear that he had a significant impact on Plaintiff A’s social life. The amount of consolation money shall be determined as KRW 30,000,000, considering the following factors: (a) the price and the national income increase between Plaintiff A and Plaintiff A who flows over about 40 years after the illegal act occurred

In addition, Plaintiff A filed a claim for the payment of KRW 13,219,200 as lost damage during the above illegal confinement period, but only Plaintiff A was a student at the time and was raising income. There is no evidence to prove that Plaintiff A was a student. Therefore, the above Plaintiff’s claim for this part of the claim is without merit.

C. Therefore, the Defendant is obligated to pay the Plaintiff A 30,000,000 won and the damages for delay calculated by each of the following rates from June 4, 2013 to August 20, 2014, which is the day following the delivery of the complaint of this case, to August 20, 2014.

B. Determination as to Plaintiff B’s claim

After the plaintiffs married in 1978, the plaintiff Eul filed a claim against the defendant for payment of KRW 30,00,00 as compensation for mental suffering, on the ground that the officer was revoked and served as a private soldier due to the fact that the officer was able to live together with his family in the military as an officer in the military, and the officer was in violation of Emergency Measure No. 9, although the officer was unable to live together with his family, the plaintiff Eul filed a claim for payment of KRW 30,00,00 as compensation for the above mental suffering. However, the statement of subparagraphs 1 and 2 of the evidence No. 7-1 and 9-2 alone is insufficient to find the fact that the plaintiff A was unable to perform military service as an officer due to the power of violating Emergency Measure No. 9, and there is no other evidence to find that the plaintiff Eul suffered serious mental suffering due to the case that occurred to the husband before marriage. Therefore, the above plaintiff's claim by the plaintiff Eul was without merit.

3. Conclusion

The plaintiff A's claim partially accepted, and the plaintiff B's claim is dismissed.

Judges Laosia