(영문) 서울행정법원 2016.12.23. 선고 2016구합61747 판결

1. On December 6, 2010, the decision that the Defendant dismissed the Plaintiff’s application for restoration of honor against the person related to the democratization movement.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff was convicted of a university student who was temporarily enrolled in the second year of the Electronic Accounting Department at B University due to the following facts constituting a crime (hereinafter “the first conviction”) (in order, from the first conviction to the fourth conviction).

A person shall be appointed.

B. The Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movement (hereinafter “the Act prior to amendment by Act No. 11042, Sept. 15, 201”) was enacted on January 12, 200. On December 27, 2004, the Plaintiff filed an application for restoration of honor with the Defendant for a judgment of conviction on the grounds that he/she constitutes “the person who was convicted of having been found guilty on the grounds of the democratization movement” under Article 2 subparag. 2(d) of the Act, but the Defendant dismissed the Plaintiff’s application for restoration on the grounds that he/she constituted “the person who was convicted on the grounds of the democratization movement” (hereinafter “instant disposition”);

The plaintiff opposed to the government's unification policy and inter-Korean exchange, and argued the unification of the federal system, but it was difficult to deny the legitimacy of liberal democracy and the state, which are the basic ideology of the Constitution of the Republic of Korea, and to provide relief for the truth of the public security rule and the Gwangju School homicide case.However, in substance, the plaintiff was affiliated with an organization that asserted the unification of the federal system as argued by North Korea, and was jointly affiliated with its members. In addition, at the time of participating in various student assemblies, the plaintiff was infected with pathic disease.

Acts of violence that deviate from the reasonableness of means, such as inflicting bodily injury on police officers, has not been recognized as persons related to democratization movements.

C. On September 18, 2015, when the Plaintiff was unable to receive the instant disposition, the Plaintiff withdrawn the application for restoration of honor for the judgment Nos. 3 and 4 with respect to the Defendant, and the Defendant dismissed the reexamination on February 22, 2016.

D. Meanwhile, the Plaintiff filed an application for restoration of honor with respect to the following conviction by asserting that M who participated in the case of confinement on April 8, 1991 together with the Plaintiff and was convicted of the Defendant as “the person convicted on the ground of a democratization movement.” Unlike the instant disposition, the Defendant recognized M as a person related to a democratization movement on July 11, 2005, unlike the instant disposition.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 8, Eul evidence Nos. 1 through 6, 9 through 14, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Since the Plaintiff excluded the judgment Nos. 3 and 4 from those subject to an application for restoration of honor in the process of re-deliberation, the judgment Nos. 3 and 4 should be excluded in determining the legality of the disposition of the instant case. ② Demonstration listed in the judgment Nos. 1 and 2 constitutes an act of restoring and expanding the freedom and rights of the people as a student’s demonstration or citizen’s demonstration demanding democratization and peaceful unification. The assault against police officers listed in the judgment Nos. 2 and the judgment No. 2 constitutes an act of infringing on the unlawful inspection, which had taken into consideration the student’s trend, and thus, the Plaintiff convicted the Plaintiff on this ground constitutes a person related to democratization movements. Moreover, the Plaintiff was found guilty on this ground, and the Defendant, together with the Plaintiff, dismissed only the Plaintiff’s application for restoration of honor, even though the Defendant decided as a person related to democratization movements.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

For the purpose of this Act, the term "dist movement" is defined as an activity that contributed to the realization of ideology and value pursued by the Constitution and the establishment of democratic constitutional order and restored and expanded freedom and rights of the people by resisting authoritative rule that disturbs fundamental order of free democracy and infringes on fundamental rights of the people guaranteed by the Constitution on or after March 24, 1964 (Article 2 subparagraph 1 of the Act). As for a person convicted on the grounds of such democratization movement, active measures for restoring honor are recommended by the President for special amnesty and restoration of honor and restoration, and the Compensation Deliberation Committee provides that the person convicted on the grounds of such democratization movement may request the President to delete or discard criminal records (Article 5-3 of the Act). However, the term "dist movement movement movement" means a person who has contributed to or has been convicted of his or her status and authority in the process of performing such active activities, such as death, illness, or injury, and thus, is objectively demanded and defined as the term "pro-enemy motive and authority of the people at the time of his or her conviction."

However, if the plaintiff applied for restoration of honor only to the first and second judgments at the time of the application of this case, the defendant made a decision on whether to restore honor according to the first and second judgments. Thus, unless the plaintiff excluded the third and fourth crimes from those subject to the application for restoration of honor in the process of the request for a retrial, the judgment cannot be used as the main basis for the determination of the third and fourth crimes. ② One of the demonstrations participated by the plaintiff in the first and second crimes (the demonstration of August 13, 191) is illegal because it was not in violation of the National Security Act and the Agreement between North and South Korea, which is an anti-government organization, in relation to the unification issue, and thus, it cannot be seen that the defendant's decision on the abuse of status against the defendant's fundamental order of free democracy, which is the basic principles of the Constitution of the Republic of Korea, was unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.