2014 Gohap 572715 Damage, Claim

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J.

Korea

April 9, 2015

May 21, 2015

1. The plaintiff E shall be dismissed.

2. All claims filed by Plaintiffs A, B, C, D, F, G, H. I, and J are dismissed. 3. Costs of lawsuit are assessed against the Plaintiffs.

The defendant shall pay to the plaintiffs 5% interest per annum from December 15, 1979 to the delivery 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

The following facts may be acknowledged as either in dispute between the parties or in the entry in Gap evidence 1 through 5 (including the serial number) by considering the whole purport of the pleadings.

A. Facts related to Plaintiff A

1) The facts charged that Plaintiff A violated the Presidential Emergency Decree for the National Security and the Protection of Public Order (hereinafter “Emergency Decree No. 9”), was indicted by the Jeonju District Court 79Da131, and was acquitted on December 14, 1979 on the ground that the Emergency Decree No. 9 was released by the Presidential Notice No. 67 on December 8, 1979 and the sentence was abolished. Plaintiff A was detained by the detention warrant on August 16, 1979, and was released on bail on November 30, 1979 and detained for 107 days.2) Plaintiff B was the wife of Plaintiff A, Plaintiff C, and Plaintiff D’s children.

B. Facts related to Plaintiff E

1) As the facts charged that Plaintiff E violated Emergency Decree No. 9, the Seoul Criminal Court was indicted for the violation of the Emergency Decree No. 75 Gohap187, and was sentenced to one year imprisonment and one year of suspension of qualification on November 18, 1975. In Seoul High Court Decision 75Do1564, the appellate court was sentenced to two years of suspended execution of one year of imprisonment and one year of suspension of qualification on March 4, 1976. The judgment became final and conclusive around that time. Plaintiff E was detained by a detention warrant on June 13, 1975 and was detained for 266 days, and was released by a suspended sentence on March 4, 1976.

2) Plaintiff E’s father, Plaintiff F’s mother, Plaintiff G, H, I, and J are all siblingss of Plaintiff E. K prior to the instant lawsuit. K died on April 17, 2013, prior to the instant lawsuit.

2. The plaintiffs' claims

Plaintiff A and E were detained for a long time on suspicion of violation of Emergency Decree No. 9, and Plaintiff A received inspection even after the trial. However, in the course of the investigation and trial, the above Emergency Decree is unconstitutional and invalid, and the public officials belonging to the Defendant arrested Plaintiff A and E without presenting a warrant of arrest, and the Defendant’s public officials arrested Plaintiff A and E without notifying the right to refuse arrest and statement and the right to appoint counsel, and committed a tort in the application of Emergency Decree No. 9 which is unconstitutional and invalid, and the Defendant committed a tort in the custody of Plaintiff A and E. Therefore, the Defendant is obliged to pay consolation money as indicated in the attached amount of claim.

3. Determination as to the defendant's defense prior to the merits

A. Defendant’s defense prior to the merits

Plaintiff E consented to the decision on the payment of compensation under the Act on the Restoration of Honor to and Compensation to Persons Related to Democratization Movement (hereinafter “The Democratic Compensation Act”) for the investigation and trial due to the violation of Emergency Measure No. 9, and thus, Plaintiff E is deemed to have established a judicial compromise as to all damages related to the investigation and trial due to the violation of Emergency Measure No. 9.

Therefore, the instant lawsuit filed by Plaintiff E and his/her family members is unlawful.B, determination is unlawful.

1) Legal principles

The decision to pay compensation, etc. under the Democratization Compensation Act shall be deemed to have been made by a judicial compromise under the Civil Procedure Act on the damage incurred in relation to democratization movements (Article 18(2) of the Democraticization Compensation Act) when the applicant consents to the decision.

In addition to the legislative intent of the Democratization Compensation Act, the contents of relevant regulations, the consent of the applicant to prepare and submit, and the contents of the written claim, the legislative purpose of Article 18(2) of the Democratization Compensation Act is to promptly terminate and implement through the procedures for decision-making, such as the restoration of honor of persons related to democratization and the Compensation Deliberation Committee (hereinafter “Compensation Deliberation Committee”) and to ensure stability in the decision-making, in full view of the following: (a) in cases where the applicant has consented to the decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making decision-making of the Compensation Deliberation Committee pursuant to Article 18(2) of the Democratization Compensation Act, the same effect as judicial reconciliation under the Civil Procedure Act shall take effect as to all damages related to democratization movement, including consolation money, etc. received by the applicant (see, e.g., Supreme Court Decision 2014Da45603, Mar. 13, 2014).

2) Comprehensively taking into account the results of the fact-finding of the lawsuit brought by Plaintiff E, the purport of the entire pleadings, as seen earlier, Plaintiff E applied for the payment of living allowances to the Compensation Deliberation Committee, which was convicted of violating Emergency Measure No. 9, as seen earlier. On October 12, 2005, the Compensation Deliberation Committee decided the living allowances to be paid to Plaintiff E as KRW 13,970,340, and Plaintiff E applied for the payment of living allowances from October 17, 2005. On October 17, 2005, the Compensation Deliberation Committee decided that Plaintiff E did not object to the determination of the above living allowances, and submitted the consent and written request to confirm the establishment of the settlement contract, and then submitted it to the Compensation Deliberation Committee, and recognized the fact that Plaintiff E received living allowances from the Compensation Deliberation Committee.

According to this, all damages suffered by Plaintiff E due to investigation and trial due to violation of Emergency Decree No. 9, especially damages, including consolation money, have the same effect as judicial reconciliation between Plaintiff E and the Defendant.

Therefore, the instant lawsuit filed by the Plaintiff E is unlawful as it conflicts with the res judicata of the said judicial compromise.

3) Whether the action brought by the Plaintiff F, G, H, I, and J is legitimate

There is no evidence to acknowledge that Plaintiff F, G, H, I, and J received any decision or consented to the decision of compensation payment from the Compensation Deliberation Committee, or that Plaintiff F, G, H, H, I, and J agreed to the decision of compensation payment. There is no ground to deem that the effect of the judicial compromise arising from Plaintiff E’s consent on the decision of compensation payment reaches Plaintiff F, G, H, I, and J on the sole ground that Plaintiff F, G, H, I, and J are in family relationship with Plaintiff E.

The defendant's defense prior to the merits is without merit.

4. Determination as to the plaintiffs' claims except the plaintiff E

A. Legal doctrine

Emergency Decree No. 9 lacks the requirements stipulated in Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 18, 1980, Oct. 27, 201) that served as the basis for the issuance of the Emergency Decree. In addition, 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, which are fundamental elements of democracy and the current Constitution (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

However, in a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that the statute was unconstitutional or invalid, even if an investigation was initiated based on the relevant law before the statute was declared unconstitutional and a public prosecution was declared guilty, such circumstance alone cannot be deemed as constituting a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act.

In addition to the lack of the requirements stipulated in Article 53 of the U.S. Constitution, which served as the basis for the issuance of the Emergency Decree, as well as the lack of the essential elements of democracy, and as such, it shall be 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 as stipulated in the current Constitution. However, as long as Article 53(4) of the U.S. Constitution provides that "the emergency measures as stipulated in paragraphs (1) and (2) shall not be subject to judicial review," and the emergency measures as stipulated in subparagraph 9 are not declared unconstitutional and void, it shall not be deemed that it constitutes a tort by a public official's intentional or negligent act committed with trust and trust.

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 and conclusive judgment was rendered, but the defendant's case constitutes a case without proof of criminal facts, the State's liability for damages caused by reinstatement, etc. under the latter part of Article 325 of the Criminal Procedure Act may be recognized. However, in a case where a judgment of innocence under the former part of Article 325 of the Criminal Procedure Act, which is the Act on the Punishment applied to the defendant in the retrial procedure for conviction of a violation of subparagraph 9 of the Emergency Decree, becomes final and conclusive on the ground that the violation of the former part of Article 325 of the Criminal Procedure Act was unconstitutional or invalid, it cannot be deemed that the judgment of innocence was rendered in the judgment of conviction due to an unlawful act of the State, barring any other special circumstance. Thus, the mere fact that the judgment of innocence became final and conclusive cannot be deemed as immediately a tort of the State, and thus, the State's liability for damages can not be recognized. In such a case, the State agency can be recognized as having established the grounds for final judgment of innocence 20.

B. Determination

The facts charged that Plaintiff A violated Emergency Measure No. 9 and was indicted on the charge of the violation of Emergency Measure No. 9, and the facts charged that Plaintiff E violated Emergency Measure No. 9, and the facts charged that Plaintiff E was convicted are as seen earlier. However, even if an investigation agency conducted an investigation by arresting and detaining Plaintiff A and E without a warrant under subparagraph 9 of Emergency Measure No. 9, which was in force at the time of the investigation agency, and charged a public action, or a judge rendered a conviction by applying Emergency Measure No. 9, insofar as at the time the Emergency Measure No. 9 was not declared unconstitutional or invalid, such circumstance alone does not constitute a tort by a public official’s intentional or negligent act.

In addition, comprehensively taking account of the overall purport of the arguments in Gap evidence 4-3, 4, and 5, as seen earlier, the plaintiff Eul was convicted on March 4, 1976 in Seoul High Court 75No1564 case, which was the appellate court, and the judgment became final and conclusive. After which the plaintiff Eul filed a petition for review with the Seoul High Court 2014No12, which was then rendered a judgment of not guilty under the former part of Article 325 of the Criminal Procedure Act on April 9, 2014 on the ground that the Emergency Decree No. 9, which was applicable to plaintiff Eul, was unconstitutional and void. The fact that the judgment became final and conclusive can not be deemed a case where the above conviction was rendered due to an illegal act of the State agency in the course of investigation, barring any special circumstance. Thus, the investigation and trial related to the above conviction cannot be immediately deemed to constitute a State tort.

Furthermore, it is not sufficient to recognize that the public officials belonging to the defendant illegally inspected the plaintiff A after the trial, or that the plaintiff A and E committed a specific illegal act after the investigation and trial process or thereafter, there is no evidence to acknowledge otherwise.

Therefore, the claims of plaintiffs A, B, C, D, F, G, H, I, and J are without merit.

5. Conclusion

Therefore, the lawsuit brought by the plaintiff E is unlawful and thus dismissed, and all of the claims of the plaintiff A, B, C, D, F, G, H, I, and J are dismissed. It is so decided as per Disposition.

The presiding judge and senior judge pension

Judges Jin-Gyeong

Judges Eno-ju