(영문) 대법원 2015.6.11.선고 2014다215444 판결

The Presidential Emergency Decree No. 1 (hereinafter referred to as "Emergency Decree No. 1") and Presidential Emergency Decree No. 4 (hereinafter referred to as "Emergency Decree No. 4") lack the requirements per se stipulated in Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as "New Constitution") which served as the basis of the issuance of the Emergency Decree, and are unconstitutional and invalid since they violate the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, right of residence, right to petition, and academic freedom as stipulated in the current Constitution and the current Constitution (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010; Supreme Court en banc Decision 2011Do2631, May 16, 2013).

Furthermore, even if the Emergency Decree Nos. 1 and 4 was declared unconstitutional and invalid ex post by a court, the exercise of the Presidential Emergency Decree’s right based on the New Constitution is a state act with high level of political nature, and the President, in principle, assumes political responsibility in relation to the exercise of national emergency power, and does not bear legal obligations in response to individual rights. Thus, such exercise of power by the President cannot be deemed to constitute a tort under civil law in relation to an individual citizen (see Supreme Court Decision 2012Da48824, Mar. 26, 2015).

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the issuing act of the President’s Emergency Measure Nos. 1 and 4 and the act of a public official belonging to the Defendant arrested and detained the Plaintiffs without a warrant pursuant to subparagraphs 1 and 4 of the Emergency Measure constitutes a tort by a public official’s intentional or negligent act under Article 2(1) of the State Compensation Act. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for establishing State liability under Article 2(

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.