2015Na2026656 Damages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

Korea

Seoul Central District Court Decision 2014Gahap535136 Decided May 12, 2015

September 10, 2015

October 15, 2015

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the first instance court is revoked. The defendant shall pay to the plaintiffs the amount stated in the separate sheet No. 1 and the amount calculated by the rate of 5% per annum from September 13, 1978 to the delivery date of a copy of each complaint of this case, and 20% per annum from the following day to the day of full payment.

1. Basic facts

A. On September 13, 1978, while attending the third year of the university and college, Plaintiff A participated in the demonstration within the university, and produced a printed article that criticizes the government at the time. Accordingly, the investigators affiliated with the Defendant had led Plaintiff A to attract the Plaintiff to the Mak Police Station.

B. On September 19, 1978, Plaintiff A issued a detention warrant in violation of the Presidential Emergency Decree No. 9 (hereinafter “Emergency Decree No. 9”) for the national security and the protection of public order. On October 16, 1978, Plaintiff A was indicted for violating Emergency Decree No. 9 of the Seoul District Court’s Youngpool 78,257, 78, 259, 79, 79, and 10. The summary of the facts charged is as shown in attached Table 2. The above court found the Defendant guilty of all the facts charged and sentenced the Plaintiff A three years of imprisonment and suspension of qualification. The Seoul High Court, which was the appellate court reversed the above sentence on June 21, 1979, and sentenced the suspension of execution for two years (hereinafter “The judgment of Plaintiff A’s final judgment”) and rendered a two-year suspension of qualification for the Plaintiff A’s imprisonment, which became final and conclusive according to the sentence No. 1979, Dec. 17, 1979.

D. On November 19, 2013, Plaintiff A filed a petition for a new trial with the Seoul High Court (Seoul High Court 2013No127). On March 27, 2014, the said court rendered a decision of commencing a new trial on the grounds that the Emergency Measure No. 9 applied to Plaintiff A was unconstitutional or invalid from the beginning, and the said decision became final and conclusive around that time. On June 19, 2014, the said court rendered a judgment of not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act on the grounds that the Emergency Measure No. 9 applied to Plaintiff A constituted unconstitutional or invalid, and thus, the said judgment became final and conclusive on June 27, 2014.

E. Around the time of detention as above, the Plaintiff’s family members were J, mother B, sibling C, D, E, F, and G. The J died on March 26, 1993.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 5, 7 through 12 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the defense prior to the merits

In the event that the plaintiffs received compensation, etc. pursuant to the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement, the defendant appears to have established a judicial compromise pursuant to the Civil Procedure Act. Thus, the lawsuit in this case is unlawful as there is no benefit of lawsuit. However, there is no evidence that the plaintiffs were determined to pay compensation pursuant to the above Act, or that the plaintiffs received compensation, and such defense is without merit.

3. The plaintiffs' assertion

A. In the meantime, although it is difficult to see that the L former president is a national crisis situation that must be dealt with with by the national emergency power such as the exercise of the emergency power, it publicly announced the long-term power and triggers the Emergency Measure No. 9 to suppress the opposing power of the new constitution. In light of the content, the Emergency Measure is an unconstitutional measure that seriously infringes on the fundamental rights of the people, such as the warrant requirement and the freedom of expression under the Constitution. Therefore, the exercise of the L former president’s emergency measure No. 9 constitutes a tort committed intentionally by a public official while performing his duties, and thus, the Defendant should compensate for the damages

B. Preliminaryly, investigators, etc. affiliated with the defendant were illegally arrested and detained without a warrant without notifying the plaintiff who violated emergency measures against the plaintiff A in the course of investigating the plaintiff who violated the emergency measures, and illegally arrested and detained and detained the plaintiff without a warrant, restricting the meeting of the attorney-at-law and his/her family members, and committing cruel acts including adviser. The judgment on retrial was used as evidence of conviction by each suspect interrogation protocol prepared in the state of no voluntariness and continued surveillance or preliminary autopsy after the release from the defendant, and detained the defendant. Accordingly, the defendant must compensate the plaintiffs for the damages suffered by the plaintiffs due to

C. Therefore, the Defendant is obligated to compensate for consolation money (Plaintiff A.30 million won, Plaintiff J and Plaintiff B, respectively, and KRW 100 million, respectively) to Plaintiff A’s lost income of KRW 10 million and the Plaintiffs.

4. Determination

A. As to the primary argument that the issuance of the presidential emergency power constitutes a tort by itself

In addition to the lack of the requirements stipulated in Article 53 of the New Constitution, which served as the basis for the issuance of an emergency measure, it is unconstitutional and invalid as it infringes on the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, petition right, and academic freedom (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 2013). However, even if the emergency measure is declared ex post to be unconstitutional and invalid by a court, the exercise of the emergency measure by the President based on the new Constitution is a state act with high level of political nature and is not a legal obligation in response to the exercise of the national emergency measure, and thus, it does not constitute a tort under civil law in relation to each citizen (see, e.g., Supreme Court Decision 2012Da48284, Mar. 26, 2015).

In light of these legal principles, the plaintiffs' above assertion that the issuance of the emergency measure by L former president itself constitutes tort against the plaintiffs is without merit.

B. As to the conjunctive assertion regarding the investigation and punishment by an emergency measure

(1) Relevant legal principles

In a case where a penal law becomes retroactively null and void due to a decision of unconstitutionality by the Constitutional Court or a court declared null and void, even if an investigation is initiated based on the relevant law before the said law becomes unconstitutional, and a public prosecution is instituted and a judgment of conviction is rendered, such circumstance alone does not necessarily lead to the State’s liability for damages as it constitutes a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act. Although the Emergency Decree No. 9 is unconstitutional and void as seen earlier, the judicial duties of a judge who has conducted an investigation by arresting and detentioning a suspect without a warrant under the Emergency Decree which was in force at the time of enforcement, and conducted an investigation by applying the Emergency Decree, or by applying the Emergency Decree No. 53(4) and (2) thereof, are not subject to judicial review (see, e.g., Article 53(1) and (2) of the 20th Constitution, and Emergency Decree No. 920, supra, cannot be deemed unconstitutional and void.

(2) First, we examine whether an investigation and trial based on Emergency Measure No. 9 constitute a tort.

According to the above facts, the plaintiff A was arrested on the charge of violating Emergency Measure No. 9, and the fact that the plaintiff A was indicted and convicted in the detention became final and conclusive is recognized.

However, in light of the above legal principles, the act of performing the investigation by arresting and detaining the plaintiff A without a warrant pursuant to Emergency Measure No. 9, which was in force at the time, and conducting the investigation, or the act of performing the judicial duties of the judge who made the prosecution or the judge who made the judgment of conviction, shall not be deemed to constitute an act conducted pursuant to Emergency Measure No. 9, which was not declared unconstitutional

Furthermore, in light of the following circumstances acknowledged by adding the purport of the entire pleadings, it is difficult to deem that high probability was established as to the existence of a cause of innocence under the latter part of Article 325 of the Criminal Procedure Act, if there was no cause of innocence under the former part of Article 325 of the Criminal Procedure Act, such as invalidation of Emergency Measure No. 9, etc. Therefore, it cannot be deemed that there was a causal relationship between the State agency’s illegal act and the damage caused by the Plaintiff A’

① A decision to commence a retrial on a judgment subject to a retrial was rendered on April 18, 201 by the Supreme Court en banc Order 2011Hu689 Decided April 18, 201, which held that Emergency Measure No. 9 was deemed unconstitutional and void from the beginning, and this constitutes grounds for a retrial under Article 420 subparag. 5 of the Criminal Procedure Act, and it did not constitute grounds for a retrial under Article 420 subparag. 7 of the Criminal Procedure Act.

② With respect to the facts constituting a violation of the Emergency Decree No. 9 of the Plaintiff, the original judgment subject to a review refers to the evidence of conviction of the Plaintiff: (a) the statement written by the lower court on the interrogation protocol against the said Plaintiff; (b) the document written by the prosecutor, N,O, P, Q, and R; and (c) the document written by a judicial police officer’s inspection protocol, T, U, V, W, X, Y, Z, AB, etc.; (c) one seized mailphone, one bank, and 218 copies of printed materials. However, even if the lower court did not deny the production and distribution of printed materials and the participation in the demonstration at the appellate trial; (d) the first emergency measure No. 9 did not meet the requirements for its issuance; (c) the lower court erred by misapprehending the legal doctrine on the preparation of the prosecutor’s interrogation protocol; or (d) the act of using the written indictment constitutes a democratic act as a national of the Plaintiff’s testimony, which is inadmissible in the process of the Plaintiff’s oral hearing and the remainder of evidence.

③ In addition, Plaintiff A’s written indictment was in violation of Emergency Decree No. 9 at the time.

(3) Meanwhile, in the course of an investigation by an investigator who is arrested and detained without a warrant, the Plaintiffs suffered harsh treatment, such as adviser, by infringing upon the right to assistance of counsel during the process of the investigation by the investigator affiliated with the Defendant. The Plaintiffs were unfairly detained for a long period of time in violation of the provisions of the Criminal Procedure Act at the time. The Plaintiffs asserted that they were unfairly detained, and seek compensation for damages arising from their individual tort in the

In full view of the aforementioned facts and evidence Nos. 9-1 and 10 as a whole the purport of the pleadings, the facts of assault or cruel act as alleged above in the Plaintiff’s arrest and investigation process, and the facts of confinement of the Plaintiff A beyond the detention period of the investigation agency and prosecutor under the Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980; hereinafter referred to as the “former Criminal Procedure Act”) which was in force at the time, may be recognized. This constitutes a tort by a public official’s intentional or negligent act under Article 2(1) of the State Compensation Act (However, the evidence alone with the above evidence alone, it is insufficient to recognize the facts of violation of the right to counsel during the period of investigation by the Plaintiff A, and there is no other evidence to acknowledge this).

However, the lawsuit of this case was filed on May 23, 2014, which was more than five years from July 17, 1979 that Plaintiff A had been released as suspension of execution, and barring special circumstances, barring any special circumstance, the claim for damages arising from the tort was extinguished by prescription (Article 71 of the former Budget and Accounts Act (wholly amended by Act No. 4102, Mar. 31, 1989). Accordingly, the plaintiffs asserted that the defendant's defense of extinctive prescription is an abuse of rights since there is a reason that the creditor cannot exercise his right objectively until the plaintiff A was sentenced to acquittal through a retrial and became final and conclusive.

The exercise of a debtor's right of defense based on the statute of limitations is also subject to the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, if there are special circumstances, such as the obligor's exercise of a creditor's right or interruption of prescription prior to the expiration of the statute of limitations, the obligor's act of making it impossible or considerably difficult for the obligee to exercise a creditor's right or interruption of prescription; the obligee's act was committed to believe such measures are unnecessary; or the obligor was unable to exercise a right; or the obligor was made reliance upon the obligee's failure to invoke the statute of limitations after the expiration of the statute of limitations; the obligor's refusal to perform his/her obligation is clearly unreasonable or unfair due to such special circumstances as the obligor's receipt of the repayment of the obligation by other creditors under the same conditions as the need for protection of the obligee; and thus, the obligor's assertion of completion of the statute of limitations is not permissible against the principle of good faith and good faith against the principle of good faith. It is also possible for the State to exercise a special duty to protect the statute of trust and good faith.

Based on the above legal principles, the health team, ① the act of issuing Emergency Decree No. 9 of the former president, as seen earlier, does not themselves constitute a tort caused by a public official’s intentional or negligent act; ② The plaintiff A does not begin a retrial or have been rendered a judgment of not guilty on the grounds of innocence under the latter part of Article 325 of the Criminal Procedure Act; and as seen earlier, the causal relationship between the tort and the conviction is not acknowledged; ③ there is no evidence to deem that the plaintiffs filed an application with the Korean Commission for the establishment of truth-finding regarding the tort or that there was a decision to ascertain the truth of the past History Settlement Commission ex officio; ④ the plaintiffs filed the lawsuit in this case after the lapse of 30 years from the time of the termination of detention even though they had been aware of the above tort; ④ there was a significant change in the social and political atmosphere of Korea; ⑤ The evidence submitted by the plaintiffs alone cannot be viewed as an abuse of rights.

Ultimately, it is difficult to accept the Plaintiffs’ assertion seeking damages due to this part of tort.

(3) In addition, as to the assertion that the plaintiff A suffered mental loss due to the defendant's surveillance, confinement, etc. after the release, it is not sufficient to recognize that the public officials belonging to the defendant continued to monitor or detain the plaintiffs to the extent that they constitute tort against the plaintiffs after the release of the plaintiff A, and there is no other evidence to acknowledge this otherwise. Accordingly, the plaintiffs' assertion cannot be accepted.

5. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiffs' appeal is dismissed. It is so decided as per Disposition.

The presiding judge, associate judge and assistant judge

Judges Kim Gin-han

Judges Min Il-young