Plaintiff 1 and five others (Law Firm Barun, Attorneys Park Ha-ju et al., Counsel for the plaintiff-appellant)

Korea

April 1, 2011

1. The Defendant shall pay to Plaintiff 1 80,000,000 won, and to Plaintiff 2 20,000,000 won, respectively, and 5% per annum from April 1, 201 to April 29, 201, and 20% per annum from April 30, 201 to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiffs, and the remainder are assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 2,500,000,000 won to the plaintiff 1, and 500,000,000 won to the plaintiff 2, respectively, and 100,000,000 won to the plaintiff 3,4,5, and 6, and 20% interest per annum from the closing date of the argument of this case to the day of full payment.

1. Presumed factual basis

A. From March 18, 1972, Plaintiff 1 served as an assistant officer for the personnel director of the Army headquarters and the promotion of the staff director of the Army and the fact-finding of soldiers, and served as the head of the third military academy’s birth group on January 12, 1973. On March 26, 1973, Plaintiff 1 was suspected of receiving a bribe in relation to the so-called “the so-called “the so-called “the so-called “Sapju-gun’s accommodation case”, and was detained on March 28, 197.

B. On April 28, 1973, the Korea Army Headquarters General Law Meeting convicted Plaintiff 1 of the violation of the Bribery, the delivery of lightnings, and the Control of Firearms and Powders Act, and sentenced Plaintiff 1 of seven years of imprisonment. On September 18, 1973, the appellate court reversed the judgment of the court below on September 18, 1973, and sentenced Plaintiff 1 of three years of imprisonment with prison labor, and the remaining charges were acquitted, and the appeal by Plaintiff 1 was dismissed and finalized as is.

C. Plaintiff 1 was released from parole for a year of approximately one-year period due to the aggravation of health while serving in prison. On February 29, 1980, Plaintiff 1 was subject to a special amnesty that would lose the effect of the sentence’s term of punishment.

D. On June 20, 2007, Plaintiff 1 rendered a request for a new trial against the final judgment of the High Military Court rendered a final judgment. On December 18, 2009, in Seoul High Court Decision 2008Jno18, Plaintiff 1 was acquitted of the part of the judgment subject to a new trial on the grounds that “each of the evidence and the additional evidence presented in the original judgment as evidence of conviction are inadmissible, or not admitted to the facts charged, and there is no other evidence to prove the facts charged against the Defendant, and thus, there is no evidence to prove the above facts charged against the Defendant.” The said new judgment became final and conclusive around that time.

E. Meanwhile, Plaintiff 2’s wife, Plaintiff 3, 4, 5, and 6 are Plaintiff 1’s children.

[Grounds for Recognition: Evidence Nos. 4, 5, 9, 10, 16, 17, Evidence No. 19-1, and the purport of the whole pleadings]

2. The plaintiffs' assertion on the grounds of the claim

Plaintiff 1, who is a public official of the Defendant, was punished by imprisonment with prison labor on the basis of the evidence illegally collected through the consultation, intimidation, hearing, coercion, and coercion committed against the investigators of the Security Headquarters who are affiliated with the Defendant, and was sentenced to imprisonment with prison labor. Accordingly, the Defendant committed an illegal act against Plaintiff 1, including arrest, detention, seizure, search, and adviser who is not in accordance with due process, coercion of false statements, coercion of false statements, illegal investigation by a person without authority, collection of illegal evidence, defamation, etc.

Therefore, since the rest of the plaintiffs, who are plaintiffs 1 and their families, suffered from severe mental distress due to the defendant's illegal acts, the defendant is obligated to pay consolation money in cash. The consolation money is reasonable one hundred and twenty billion won for plaintiffs 12.5 billion won, plaintiffs 2.5 billion won, plaintiffs 3, 4, 5, and 6.

3. Occurrence of liability for damages;

A. The citizen's fundamental rights in criminal procedure and the defendant's fundamental rights

All citizens, including the plaintiffs, have personal liberty and fundamental rights, such as the principle of legality and due process guarantee, prohibition of advisers and right to refuse to make statements unfavorable to them in criminal proceedings, warrant principles in arrest, detention, seizure and search, and restriction on the admissibility of confessions. The defendant has the duty to confirm and guarantee the fundamental human rights of the above citizens.

B. Defendant’s tort

(i)Recognitions

㈎ 체포·구속·압수·수색 과정의 위법

On March 26, 1973, the plaintiff 1 was forced to conduct an official investigation into the Security Headquarters and a ice room without a prior arrest and detention warrant, and the judge was subject to illegal confinement for three days on the 28th day of the same month by the issuance of a detention warrant. In addition, while the security headquarters investigators detained the plaintiff 1, they searched the plaintiff 1's own house and seized the articles, and the prior search and seizure warrant or the subsequent search and seizure warrant remains.

㈏ 서빙고분실 수사 과정의 위법

The public investigation and employees of the security headquarters, who are not authorized to investigate general criminal cases, forced Plaintiff 1 to make a false statement in the military prosecutor's room for about ten days, while investigating Plaintiff 1. During that process, Plaintiff 1 led the aforementioned investigators to commit a cruel act, such as electrical adviser, stacity, humiliation, and intimidation. In addition, the public investigation and employees of the security headquarters led the relevant suspects, such as Nonparty 2, 3, and 4, and the relevant witness, including Plaintiff 2, to make a false statement disadvantageous to Plaintiff 1 by forcing the relevant suspects, such as Nonparty 2, 3, and 4, and to make a false statement, and forged Plaintiff 2's "storage certificate" in the name of Plaintiff 2.

Although Plaintiff 1 complained of the reversal of the statement after the transfer of the military prosecutor's office, and continued to deny the crime until the military court's trial, the evidence illegally collected as above was adopted as legitimate evidence in the military court's trial and it became a major ground for conviction (the relevant suspect and witness continues to be conducted in the prosecution's investigation stage and in the non-disclosure trial process, and make a false statement at the military court's trial stage as they continue to be conducted in the investigation stage and in the closed trial process).

[Grounds for Recognition: Evidence No. 4, 5, 7, 8, 9, 10, 11, Evidence No. 12-1, 2, Evidence No. 21-1, 2, and 3, and the purport of the whole pleadings]

Shed Judgment

The public investigation at the Security Headquarters, which is a public official belonging to the defendant, and a series of actions by the employees, are not only intentional offenses committed by investigators who are public officials, but also committed such acts with the appearance of the execution of duties, such as acceptance of bribery, etc. Therefore, pursuant to Article 2(1) of the State Compensation Act, the defendant is liable for all damages suffered by the plaintiffs 1, 2 and their families due to the series of illegal acts as mentioned above, and in this case, the defendant is liable for the compensation for all damages suffered by the plaintiffs 1, and 2 and their families, as requested by the plaintiffs.

C. Judgment on the defendant's defense

The defendant set up that the defendant's claim for damages caused by the defendant's illegal act has expired since the defendant's criminal judgment against the plaintiff 1 or the completion of the execution of the punishment had been completed, and several years have passed since the defendant's claim for damages expired. The plaintiff's claim for the completion of extinctive prescription should not be allowed as abuse of rights against the principle of good faith.

A claim for damages caused by a tort under the Civil Act is extinguished by prescription when the victim or his legal representative fails to exercise the claim for damages or ten years after the date when he became aware of such damages or the perpetrator, or when the ten years have passed since the illegal act was committed, and the prescription expires when five years have passed since the State's claim against the State. It is obvious that the lawsuit in this case was instituted after the lapse of five or ten years after the date when the plaintiff 1's prosecutor was sent, which can be seen as the final illegal act of the investigators belonging to the defendant, or the date when the decision for retrial was sentenced after the execution of imprisonment with labor with respect

However, the plaintiff 1 was illegally arrested and detained by the investigator belonging to the defendant, and thereafter made a false confession because it was impossible to take advantage of cruel acts, such as adviser, saves, abusives, intimidation, etc., which goes beyond the ordinary level of harm in the course of performing the duties of the state agency, and thus, the degree of illegality is very serious. After which the plaintiff 1 denied the crime at the trial court, but it was found guilty by denying the plaintiff 1's assertion by illegally collecting the crime or relianceing on false evidence. Therefore, it is difficult to expect the plaintiffs 1 to file a civil lawsuit against the state that the defendant was the perpetrator until it is recognized that the judicial branch that found the plaintiff 1 guilty was erroneous in the past's judgment. Accordingly, it is deemed that there was an objective obstacle that the plaintiffs could not exercise the right to claim damages of this case against the defendant until December 18, 2009 when the new judgment against the plaintiff 1 became final and conclusive. Therefore, it is against the abuse of rights principle that the plaintiffs' claim for damages is completed.

Therefore, the plaintiffs' re-appeal pointing this out is with merit, and the defendant's defense is without merit.

4. Scope of liability for damages

(a) Grounds for consideration;

As seen earlier, the consolation money shall be determined by comprehensively taking into account the following factors, including the anti-human rights of the tort of this case, the organizational specificity and its gravity, the period during which Plaintiff 1 was cruel by adviser, etc. at the security headquarters and the military prosecutor's office until the case is forwarded to the military prosecutor's office, and the sentence of sentence, prison term, Plaintiff 1 received the benefits from the Defendant during the period of time in which the judgment was rendered, and Plaintiff 1 received from the Defendant during the period of time in which the judgment was rendered, and Plaintiff 1 received from the Defendant during the period of time in which the judgment was made. On the other hand, Plaintiff 1 filed a claim for criminal compensation, but did not receive any decision on compensation, but it appears that Plaintiff 1 maintained false statement contrary to conscience by being harshly committed due to Plaintiff 2's series of conduct, and the time (including consolation money for delay during the above period of time, but including only part of it to exclude excessive compensation related to monetary value change) and all other circumstances revealed in the argument

(b) the amount recognized;

o Plaintiff 1, the principal: 250 million won

o Plaintiffs 2: 80 million won

o Plaintiffs 3, 4, 5, 6, each of whom is a child: KRW 20 million

C. As to the defendant's assertion that the recognition of consolation money exceeding the maximum limit of the State Compensation Act is illegal

The defendant asserts that it should not exceed the maximum amount of consolation money under Article 3 (5) of the State Compensation Act and Article 5 of the Enforcement Decree of the State Compensation Act.

However, Article 3 of the State Compensation Act provides only one of the criteria for the payment of compensation to the Compensation Council, and thereby does not limit the repayment of compensation (see Supreme Court Decision 69Da1203 delivered on January 29, 1970). The above argument is without merit.

5. Conclusion

The defendant is obligated to pay to the plaintiff 1 250 million won, 80 million won, 3, 4, 5, and 6 each of the above amounts to the plaintiff 20 million won, 20 million won, and 6 each of the above amounts from April 1, 2011, which is the date of the closing of argument of this case (the time of calculating the above data), to the plaintiff 1 until April 29, 201, which is the date of the sentencing of this case, the dispute over the scope of the defendant's obligation to pay 5% per annum prescribed by the Civil Act, and from April 30, 201, which is the next day until the day of full payment, 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from April 30, 2011, which is the date of the sentencing of this case. Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed. It is so decided as per

Judges Jeong Il-il (Presiding Judge)