2013 Gohap 544546 Damage, Claim

Attached Table 1 is as shown in the list of plaintiffs.

Korea

March 11, 2015

November 2015, 25

1. Among the plaintiff's lawsuit, the part concerning the plaintiff's own lost income and consolation money claim, the part concerning the plaintiff's own lost income and consolation money claim, the part concerning the plaintiff's lost income and consolation money claim, the part concerning the plaintiff's lost income and consolation money claim, and the part concerning the plaintiff's lost income and consolation money claim, the part concerning the plaintiff's lost income and consolation money claim, which are unique to the deceasedJ

2. Each claim of the plaintiffs other than plaintiffs A, B, C, D, E, F, G, and I, and all remaining claims of plaintiffs A, B, C, D, E, F, G, and I are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs 5% interest per annum from December 29, 1978 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Plaintiff A, the network H, the network J, Plaintiff K, and L (hereinafter “the instant M-related parties”) were arrested and detained on charges of violating Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “new Constitution”), and were convicted of having been convicted of having been convicted of having been convicted of having committed the following charges: (a) the results of arrest and detention of the instant persons related to M-related parties on charges of violating the Presidential Emergency Measure No. 9 (hereinafter “Emergency Measure No. 9”) issued under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980); and (b) the results of such arrest and detention and trial are as follows.

1. 원고 A• 1심(광주지방법원 76고합177호) : 1976, 12, 30, 징역 5년 및 자격정지 5년 선고· 항소심(광주고등법원 77노46호) : 1977. 4. 2. 징역 3년 및 자격청지 3년 선고• 상고심(대법원 77도1433호) : 1977. 7. 26. 상고기각으로 항소심 판결 확정· 구금기간 : 1976, 8. 14.부터 1977. 8. 15.까지 367 일2. 망H• 1심(광주지방법원 76고합177호) : 1976. 12. 30. 징역 6년 및 자격정지 6년 선고항소심 (광주고등법원 77-46호) : 1977. 4. 2. 징역 4년 및 자격정지 4년 선고• 상고심(대법원 77도1433호) : 1977. 7. 26. 상고기각으로 항소심 판결 확정구금기간 : 1976. 8. 14.부터 1977. 8. 15.까지 367 일3. 망 J| 1심 (광주지방법원 76고합177호) : 1976. 12. 30. 징역 6년 및 자격정지 6년 선고• 항소심 (광주고등법원 77-46호) : 1977. 4. 2. 징역 4년 및 자격정지 4년 선고· 상고심(대법원 77도1433호) : 1977. 7. 26. 상고기각으로 항소심 판결 확정• 구금기간 : 1976. 8. 14.부터 1977. 8. 15.까지 367 일4. 원고 K1심(제1군사보통군법회의 79보군형 제2호) : 1979. 2. 6, 징역 2년 및 자격정지 2년 선고항소취하로 확정• 구금기간 : 1978. 12, 29. 부터 1979. 5. 12.까지 135 일5. 원고 L• 1심(광주지방법원 76고합197호) : 1976. 12. 23. 징역 2년에 집행유예 3년 및 자격정지 2년 선고항소심 (광주고등법원 77-48호) : 1977. 4. 21. 항소기각• 상고기간 도과로 항소심 판결 확정· 구금기간 : 1976. 8. 30.부터 1976, 12.23.까지 116일

B. After that, Plaintiff G and deceased J filed a request for a new trial on May 3, 201 with the Gwangju High Court 201 J. On March 5, 201, the said court rendered a decision to commence a new trial on the ground that the Emergency Measure No. 9, which served as the basis for the judgment of conviction against Plaintiff A, G H and deceased J, was unconstitutional and invalid, and rendered a decision to commence a new trial on April 10, 2014 pursuant to the former part of Article 325 of the Criminal Procedure Act, on April 10, 201, Plaintiff A, H and deceased J, and the said new judgment became final and conclusive on April 18, 201, and the Prosecutor’s request for a new trial on the ground that the first part of Article 420 subparag. 5 of the said final judgment was unconstitutional and void, and the said decision became final and conclusive on April 18, 2014 as the grounds for new trial under Article 20 subparag. 215 of the said final and conclusive judgment.

D. On April 14, 2011, Plaintiff L filed a petition for a new trial on each of the above final judgments with the Gwangju District Court 201 Inventory29, and on February 7, 2013, the said court rendered a judgment that there was grounds for new trial under Article 420 subparag. 5 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9, which served as the basis for the judgment of conviction against Plaintiff L, was unconstitutional and invalid, and rendered a decision to commence a new trial on April 29, 2013, and sentenced Plaintiff L not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, and the said new judgment became final and conclusive on May 7, 2013.

E. Family relations of the instant M-related persons are as indicated in the column of “related relations” among the claim amount calculation sheet in attached Form 2, and specific inheritance relations due to the death of some of the members of their family members are as listed in attached Form 4.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's evidence Nos. 1 through 8, 14 through 17, 24, 25, 28 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Summary of the plaintiffs' assertion

A. Emergency Decree No. 9 is an unconstitutional measure that seriously infringes on the fundamental rights of the people, such as the warrant requirement under the Constitution and the freedom of expression, and thus, the enactment and issuance of the Presidential Emergency Decree No. 9, who is a public official belonging to the defendant, constitutes an unlawful act on duty.

B. In addition, the investigators affiliated with the Defendant arrested and detained the instant M-related persons without a warrant, and then prosecuted them through serious harsh suspicions, and the judges affiliated with the Defendant rendered a judgment of conviction by applying the Emergency Measure No. 9 to the instant M-related persons. The above investigation and trial acts under the Emergency Measure No. 9, which are unconstitutional and invalid, also constitute an unlawful act in the course of performing their duties. In addition, the instant M-related persons themselves have committed prison life for a considerable period of time due to a series of illegal acts, such as the issuance of the Emergency Measure No. 9, which is unconstitutional and invalid, and the investigation and trial based thereon, which are based on the Emergency Measure No. 9, and the investigation and trial conducted in the course of investigation. In addition, the victims of the instant case suffered enormous property damage and mental suffering, such as having caused serious mental and physical disability due to the cruel acts conducted in the course of investigation, and after release, due to illegal inspections on the said persons and their families, making normal social life impossible.

D. Therefore, pursuant to the main sentence of Article 2 (1) of the State Compensation Act, the defendant is obligated to pay the plaintiffs the amount of each claim and the damages for delay on each of the above money in attached Form 2 calculation table to the plaintiffs due to the tort committed by public officials belonging to the defendant.

3. Determination on the defense prior to the merits

A. Judgment on the absence of power of attorney

1) Summary of the defense prior to the merits

The legal representative of the plaintiffs filed the lawsuit of this case without legitimate delegation from the plaintiffs. Thus, the lawsuit of this case is unlawful as it was filed by a person who has no power of attorney.

2) Determination

It is true that the name of the plaintiffs is written in the delegation letter of lawsuit submitted by the plaintiffs' attorney and the seal is affixed to that of the so-called "abdomination letter". However, in light of all the circumstances shown in the arguments of this case, it can be sufficiently recognized that the plaintiffs' legal representative has been duly granted the power of attorney from the plaintiffs, and the defendant's defense of this part is without merit, since it is sufficiently recognized that the defendant's legal representative has been legally granted the power of attorney.

B. Determination as to the defense of the establishment of a judicial compromise

1) Summary of the defense prior to the merits

The Plaintiff A, the Network H, and the Network J consented to the determination of the Compensation Deliberation Committee for Restoration of Honor and Compensation to M-related Persons (hereinafter “Compensation Deliberation Committee”), and received living allowances. As to the instant case, with respect to all damage inflicted upon Plaintiff A, the Network H, and the NetworkJ, a judicial compromise took effect pursuant to Article 18(2) of the Act on Restoration of and Compensation to the State Related Persons (hereinafter “M-Related Persons Compensation Act”). Accordingly, Plaintiff A and their families, who are the bereaved families of Plaintiff B, C, D, E, F, G, each of the claims of Plaintiff N, Z, Z, and I, which are the bereaved families of Plaintiff A and their families, are unlawful as there is no benefit of protection of rights.

2) Determination

0 The legislative purport of the Compensation Act, Article 2 subparagraphs 1 and 2 (d) of the same Act, Articles 10 (1), 14 (1), and 18 (2) of the same Act, Article 20 subparagraph 3 of the Enforcement Decree of the Compensation Act [attached Form 10], Article 18 of the Compensation Act by adding to the contents of the written claim, the consent prepared and submitted by the applicant, and the written claim

In light of the legislative purpose of Paragraph (2) above, where an applicant consents to the determination of the payment of compensation, medical allowances, and living allowances (hereinafter referred to as “compensation, etc.”), such effect as judicial compromise, in particular, granting res judicata, the bereaved family members share the right to receive compensation, etc. in accordance with the share of the inherited property under the Civil Act, and the bereaved family members share the same right to receive compensation, etc. based on the monthly salary, etc. of the relevant person under Article 7 of the Compensation Deliberation Committee prior to a lawsuit, and granting stability in the determination of the payment of compensation, etc., if the applicant consented to the determination of the compensation, etc. of the Compensation Deliberation Committee pursuant to Article 18(2) of the Compensation Act, the same effect as a judicial compromise under the Civil Procedure Act shall arise with respect to all damages related to M, including consolation money, etc. that he/she received (see Supreme Court Decision 2012Da204365, Jan. 22, 2015).

In light of the above legal principles, as a result of fact-finding conducted by the Compensation Deliberation Committee on this case, and the overall purport of the argument of the court, the part of the deceased's daily benefit of the deceased's 17,67,610 won was paid on October 27, 2008 after the plaintiff was determined to be related to the above conviction by the Compensation Deliberation Committee on March 29, 2001, and was decided to pay living allowances on October 208, 2008. The deceased's benefit of the deceased 205, the deceased 205, 108, 208, 300, 100, 205, 208, 30, 300, 100, 205, 205, 17, 17, 206, 207, 14, 206, 207, 208, 30, 2005.

① The claim amount includes Plaintiff P, Q, R, L, T, U, V, W, X, Y’s respective lawsuits, and Plaintiff N, Z’s respective lawsuits, and Z’s bereaved family members who did not consent to the decision of the Compensation Deliberation Committee to pay the living allowances, ③ the part seeking payment of the amount equivalent to the consolation money unique to Plaintiff A’s part of the Plaintiff’s lawsuit, ④ the part seeking payment of the amount corresponding to the consolation money unique to Plaintiff B, C, D, E, F, and net AD’s own damages, and ⑤ the part seeking payment of consolation money corresponding to the consolation money unique to Plaintiff AB, net AC, and network AD’s own damages among Plaintiff 1’s lawsuits. Accordingly, this part of the Defendant’s defense in this part cannot be said to have effect on the part seeking the payment of consolation money, which is equivalent to consolation money unique to the deceased Party AE and net AF’s own damages. Thus, the Defendant’s defense in this part is justified only to the extent recognized earlier.

4. Judgment on the merits

A. Whether the exercise of the presidential emergency power constitutes an unlawful act on duty

First of all, it is considered whether the presidential exercise of the emergency measure is an illegal act on duty of public officials under Article 2 (1) of the State Compensation Act.

In addition to the lack of the requirements stipulated in Article 53 of the New Constitution that 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, right to petition, and academic freedom (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 2013). However, even if Emergency Decree No. 9 was declared unconstitutional and invalid ex post 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 corresponding to individual rights, and thus, it cannot be deemed that such exercise by the President constitutes a tort under civil law in relation to each citizen (see, e.g., Supreme Court Decision 2012Da42849, Apr. 26, 2015).

Therefore, this part of the plaintiffs' assertion that the defendant is liable to compensate the plaintiffs for damages due to illegal acts under the premise that the act of the President issued an emergency measure No. 9 constitutes an illegal act under Article 2 (1) of the State Compensation Act.

B. Whether an investigation and trial based on Emergency Measure No. 9 constitute an official offence

In a case where a penal law has retroactively lost its effect due to the decision of unconstitutionality by the Constitutional Court, or the court has declared unconstitutional or null and void, the act of a criminal investigation or a judge’s judicial duty cannot be deemed as a tort by a public official’s intentional or negligent act, even though an investigation was initiated and a judgment of conviction was rendered based on the relevant law. Even if the Emergency Decree No. 9 is unconstitutional or null and void, the judicial duty of a judge who has rendered a judgment of conviction by arresting and detained a suspect without a warrant pursuant to Article 9 of the Emergency Decree, which was in force at the time of the investigation, or by applying Article 53(4) of the Civil Act, provides that “The emergency Decree No. 9 of paragraphs (1) and (2) shall not be subject to judicial review” and the Emergency Decree No. 53(4) of the Civil Act does not constitute a tort by a public official’s intentional or negligent act.

However, if the judgment of innocence becomes final and conclusive in the retrial procedure against the conviction of a violation of Emergency Measure No. 9, the defendant or his/her heir can claim criminal compensation under the Criminal Compensation and Restoration of Honor Act under certain conditions and receive due compensation for such damage.

Meanwhile, in a case where a public prosecution was instituted on the basis of evidence collected by a State agency in the course of investigation and a final judgment of conviction was made, but the case under the latter part of Article 325 of the Criminal Procedure Act was found not guilty due to the lack of proof of criminal facts in the retrial procedure, the State's liability for damages caused by the reinstatement of conviction can be recognized.

However, in a case where the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act (amended by Act No. 9), which is the Act on the Punishment, applied to the defendant in a retrial procedure against a violation of Emergency Decree No. 9, becomes final and conclusive on the ground that the said provision is unconstitutional or invalid, it cannot be deemed that the judgment of innocence was rendered on the grounds of the State’s unlawful act committed during the investigation, barring any other special circumstances. Thus, solely on the fact that the judgment of innocence became final and conclusive, the reinstatement by the conviction does not immediately constitute a State’s unlawful act, and cannot be deemed as losses caused by the State’s unlawful act during the investigation process. In such a case, the State should separately examine whether there was causation between the illegal act committed during the investigation process and the conviction, and then determine whether to recognize the State’s liability for damages caused by the conviction. Accordingly, comprehensively taking account of the contents of the crime charged, the existence of evidence to acknowledge the conviction, the reasons for the decision to commence a retrial, the circumstances leading up to and reason for the judgment, etc.

2) Determination

In light of the above legal principles, even if the court subsequently declared unconstitutional and invalid Emergency Measure No. 9, the court’s judicial act of a judge who convicted the relevant persons of the instant M based on the Emergency Measure No. 9, which was enforced at the time, is not declared unconstitutional and invalid until the time, pursuant to Emergency Measure No. 9, which was not declared unconstitutional and invalid until the time.

An act committed by a public official with intention or negligence shall not be considered as an unlawful act committed by a public official.

In addition, as seen earlier, in the case of this case where the verdict of innocence pursuant to the former part of Article 325 of the Criminal Procedure Act was finalized on the grounds that the Emergency Decree No. 9, which is a penal provision, was unconstitutional and invalid in each of the procedures for review against the parties concerned with M in the instant case, barring any special circumstances, it cannot be deemed that the judgment of innocence was rendered on the parties concerned with M in the instant case due to the illegal act committed by the State agency during the investigation process, barring any other special circumstances. Therefore, the re-guilty judgment based on the judgment of innocence

In addition, the following circumstances that can be acknowledged by comprehensively taking account of the evidence and the overall purport of oral argument, i.e., ① the reason why the judgment of innocence was confirmed to be unconstitutional or invalid by the Emergency Decree No. 9, which is the basis of the judgment of conviction against the persons related to M in the instant case, are not proven due to the fact that the public officials involved in the investigation of M in the instant case committed cruel acts, such as adviser, violence, etc., or committed a crime related to their duties during the investigation process, and ② there is no objective evidence proving that the persons related to M in the instant case were cruel acts, such as adviser, violence, etc., from the investigative agency. ③ Since all of the facts charged were found to have been found in the trial process of the instant case subject to retrial, it is difficult to find that there was no evidence that there was a high probability that the public officials related to M in the instant case were found to have been found guilty by the public officials related to M in the instant case under the unconstitutional judgment No. 9, which was committed by the public officials related to the Defendant 2 was found guilty.

Therefore, this part of the plaintiffs' assertion that the investigation and trial of the public officials belonging to the defendant's officials related to the M of this case constitutes an illegal act on duty is not reasonable.

The written evidence evidence Nos. 9 through 13, 18 alone is not sufficient to determine specifically what extent the parties to the instant M and their family members received from the public officials belonging to the Defendant, and what extent they are restricted in their social lives. Furthermore, it is insufficient to recognize that the public officials belonging to the Defendant engaged in continuous inspection against the parties to the instant M and their family members to the extent that they constitute a tort under the civil law, and there is no evidence to prove otherwise, the plaintiffs' assertion on this part is without merit.

D. Sub-committee

Ultimately, the grounds alleged by the plaintiffs cannot be viewed as the defendant's liability for damages against the plaintiffs under the main sentence of Article 2 (1) of the State Compensation Act. Thus, the plaintiffs' claim is without merit without any need to further examine the scope of damages.

5. Conclusion

Therefore, among the plaintiff's lawsuit, the part concerning the plaintiff's claim for lost income and consolation money, the part concerning the plaintiff's claim for damages, the part concerning the plaintiff's claim for lost income and consolation money unique to the deceased He from among the plaintiff's lawsuit, the part concerning the claim for damages, and the part concerning the plaintiff's claim for lost income and consolation money from the deceased J from among the plaintiff's lawsuit, and the part concerning the plaintiff's claim for damages from the plaintiff's lost income and consolation money from the deceased's lawsuit are unlawful. It is so dismissed as per Disposition. The plaintiff's respective claims and the remaining claims from the plaintiff's plaintiff's Gap, B, C, D, E, F, G, and I except for the plaintiff's own lost income and consolation money from

The presiding judge, the senior judge;

Judge Han-dong

Judges Park Jae-min

1) The main contents of Emergency Measure No. 9 are as follows.

1. It shall prohibit any of the following acts:

(a) Making or spreading a will or spreading a fact distorted;

(b) by means of public radio waves, such as assemblies, demonstrations, newspapers, broadcasting, communications, documents, drawings, sound records, etc.;

The Constitution of the Republic of Korea shall be unlawful, opposite, distorted, or slandered, or shall be alleged to amend or abolish it, petition, or instigate it; and

conduct for publicity.

(c)with the prior permission of any class, research or school principal conducted under the guidance and supervision of the school authority, or other parliamentary proceedings.

An assembly, demonstration, or political intervention of a student, except for a non-political activity;

(d) openly slandering this measure;

2. To publicly disseminate any content in violation of paragraph (1) by means of broadcasting, news, or other means, or to produce any representation of such content;

An act of distributing, selling, possessing, or displaying shall be prohibited.

7. A person who violates this measure or the measures of the competent Minister pursuant thereto shall be punished by imprisonment for a definite term of not less than one year.

such suspension of qualifications for not more than ten years shall be concurrently imposed on the offender. The same shall also apply to a person who has committed, or has prepared or conspired to commit an attempted crime.

8. A person who violates this measure or the measures taken by the competent Minister shall be arrested, detained or seized without the warrant of a judge.

or may be searched.