In a case where Gap et al. completed a final judgment of conviction for violating the former Local Education Autonomy Act, and the prosecutor's employee was found guilty of violating the Public Official Election Act and was not registered in the electoral register for the reason that there was no voting right in the election executed later, and sought damages against the State, the case holding that the State is liable for mental damages suffered by Gap et al. by a public official's illegal act under Article 2 (1) of the State Compensation Act.

In a case where Gap et al. filed damages against the State when Gap et al. was convicted of violating the former Local Education Autonomy Act (amended by Act No. 10046, Feb. 26, 2010; hereinafter "former Local Education Autonomy Act"), and the execution of a final sentence became final and conclusive upon conviction of the violation of the Public Official Election Act was completed, and the prosecutor's office failed to vote because ten years have not passed since the execution of sentence was not completed and it was not recorded in the electoral register for the reason that there was no voting right, the case held that the State is liable for mental damage suffered by public officials Gap et al. due to negligence in performing official duties, even though the prosecutor's office staff in charge of recording the convict list was able to predict that the voting right may be restricted by sending the convict list to the Gu office having jurisdiction over the place of registration of Gap et al., but it was negligent in performing official duties and thus, the State is liable for mental damage suffered by Gap et al. under Article 2 (1) of the State Compensation Act.

Article 2(1) of the State Compensation Act; Article 2(1) and (3) of the former Local Education Autonomy Act (Amended by Act No. 10046, Feb. 26, 2010); Articles 2 and 18(1)3 and 18(2) of the Public Official Election Act

Plaintiff 1 and one other

Korea

Daejeon District Court Decision 2014Gadan215656 Decided November 12, 2014

July 17, 2015

1. Of the judgment of the first instance, the part against the Plaintiffs ordering payment shall be revoked. The Defendant shall pay to the Plaintiffs 2,00,000 won each of the above amounts, 5% per annum from June 4, 2014 to August 21, 2015, and 20% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. 1/2 of the total costs of litigation shall be borne by the Plaintiffs, and the remainder 1/2 by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiffs 15,00,000 won with 5% interest per annum from June 4, 2014 to the service date of a duplicate 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. On April 28, 2009, Plaintiff 2 went out of the office of education as a candidate for the election of the superintendent of education, Chungcheongnam-do, Chungcheongnam-do, which was implemented on April 28, 2009, and Plaintiff 1 is the father and wife of Plaintiff 2.

B. Plaintiff 2 was charged with violating the former Local Education Autonomy Act (amended by Act No. 10046, Feb. 26, 2010; hereinafter “former Local Education Autonomy Act”) by establishing an election similar agency in the course of the above superintendent’s election activities, filing false reports, and providing money and valuables in relation to the election campaign. Plaintiff 1 was charged with the alteration and alteration of private documents and the violation of the former Local Education Autonomy Act (amended by Act No. 10046, Feb. 26, 2010; hereinafter “former Local Education Autonomy Act”). Plaintiff 2 was charged with violating the former Local Education Autonomy Act.

C. On October 5, 2009, the Daejeon District Court rendered a judgment to suspend the execution of each of the above punishment for two years from the date when the judgment became final and conclusive (hereinafter “the judgment of this case”). On October 5, 2009, Plaintiff 2 was punished by imprisonment with prison labor for the crime of altering private documents and uttering of altered private documents. Plaintiff 1 was punished by imprisonment with prison labor for two months and six months for the violation of the former Local Education Autonomy Act.

D. Although the Plaintiffs and the Prosecutor appealed against the instant judgment, the Daejeon High Court dismissed the appeal filed by the Plaintiffs and the Prosecutor on January 22, 2010, respectively. The Plaintiffs appealed against them, but the Supreme Court dismissed the Plaintiffs’ appeals on May 13, 2010, respectively, and the instant judgment became final and conclusive on the same day.

E. On May 12, 2012, the period of suspension of the execution of the sentence finalized in the instant judgment was expired, and on June 14, 2010, Plaintiff 2 terminated the execution of the said sentence finalized by the instant judgment in the Daejeon Prison.

F. The staff in charge of the Sucheon-gu Office in Daejeon District Prosecutors' Office was convicted of violating the Public Official Election Act and the above punishment was finalized. Such convict information was sent to the Daejeon Sung-gu Office having jurisdiction over the plaintiffs' basic domicile. As a result, in the Sung-gu Office, the plaintiffs were an election criminal under Article 18 (1) 3 of the Public Official Election Act, and ten years have not passed since the suspended sentence became final (Plaintiff 1) or ten years have not passed since the execution of sentence was terminated (Plaintiff 2). Accordingly, not only the Sung-gu Office having jurisdiction over plaintiff 2's domicile but also the Seo-gu Seo-gu Office in Seo-gu, Seo-gu Office in the jurisdiction of plaintiff 1 was not recorded in the electoral register.

G. On May 31, 2014, Plaintiff 1: (a) went to the polling station in the Myeongwon Office in the mountain area of the mountain area of the Si/Gun/Gu on June 4, 2014 (hereinafter “instant election”); (b) on May 31, 2014, Plaintiff 1 was aware that Plaintiff 2 was not registered in the electoral register; (c) and (d) was dissatisfied with the Plaintiffs, but Plaintiff 2 did not raise an objection, on the ground that the electoral register was not corrected because the voting day was imminent.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 3, Gap evidence 2-4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the plaintiffs' claims

A. Relevant statutes

4. Local Education Autonomy Act

Article 22 (Election of Superintendent of Office of Education)

(1) The Superintendent of an Office of Education shall be elected by the ordinary, equal, direct, and secret election of residents.

(3) Except as otherwise expressly provided for in this Act, the provisions concerning elections of the Mayors/Do Governors under the Public Official Election Act shall apply mutatis mutandis to the elections of the superintendents of education.

/ Public Official Election Act

Article 2 (Scope of Application)

This Act shall apply to the presidential election, election of National Assembly members, local council members, and heads of local governments.

Article 18 (Discretionary Persons)

(1) Any of the following persons as of the election day shall have no voting right:

1. A person who is declared incompetent;

2. A person who was sentenced to imprisonment without prison labor or heavier punishment and whose execution has not been terminated or exempted;

3. A person who commits an election crime, who commits the crimes provided for in the provisions of Articles 45 and 49 of the Political Funds Act or who commits the crimes in connection with the duties while in office as the President, member of the National Assembly, member of local council, and head of a local government, which are referred to in Articles 129 through 132 of the Criminal Act (including the case subject to an aggravated punishment under Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes) and Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and for whom five years have not passed since a fine exceeding one million won is sentenced and the sentence becomes final or ten years have not passed since the suspended sentence becomes final, or for whom ten years have not passed since imprisonment was sentenced and the decision not to execute the sentence became final or the execution of the sentence was terminated or exempted (including a person whose punishment becomes invalidated);

4. A person whose voting right is suspended or forfeited pursuant to a court ruling or other Acts.

(2) The term "election criminal" in paragraph (1) 3 means a person who commits an election crime provided for in Chapter sixteen Penal Provisions and a crime of violation of the National Referendum Act.

B. Occurrence of liability for damages

1) Article 3 of the Act on the Lapse of Punishment, Etc. provides that "The District Prosecutors' Office and its branch offices and general prosecutors' offices shall enter convicts who have been sentenced to suspension of qualifications or a heavier punishment in convict lists without delay after the judgment sentenced to suspension of qualifications or a heavier punishment becomes final and conclusive." Article 4 (1) of the same Act provides that "The District Prosecutors' Office and its branch offices and general prosecutors' offices shall prepare convict plates for convicts who have been sentenced to suspension of qualifications or a heavier punishment and send them to the Si/Gu/Eup/Myeon offices having jurisdiction over the convicts' place of registration." In full view of the above provisions, the above basic facts are as follows: (a) a staff in charge of the head office of the Daejeon Daejeon District Prosecutors' Office in charge of the affairs in convicts of the plaintiffs; (b) a staff in charge of the head office of the Daejeon District Prosecutors' Office and its branch offices and general prosecutors' offices have an official duty to accurately grasp the status of the plaintiffs' judgment and to electronically enter the list; (c) it could have anticipated that the plaintiffs' right to vote was restricted by failing to perform their duties.

The plaintiff suffered losses from failure to exercise his right to vote in the election of this case due to negligence in the performance of his duties as above by the public official belonging to the defendant, and thereby suffered mental suffering. Thus, the defendant is obligated to compensate for mental losses suffered by the plaintiff due to the above tort committed by the public official belonging to the defendant pursuant to Article 2 (1) of the State Compensation Act.

2) As to this, the Defendant asserts that the Plaintiffs did not vote in the instant election, and that the Defendant did not grant the right to vote to the Plaintiffs, on the grounds that the Plaintiffs’ election crime as provided by Article 18(1)3 of the Public Official Election Act, for which ten years have not passed since the suspended sentence was finalized or imprisonment was completely executed.

Article 18 (1) 3 of the Public Official Election Act provides that "a person who commits an election crime as of the election day and for whom ten years have not passed since the suspension of the execution of a sentence becomes final or the execution of a sentence is terminated after having been sentenced to imprisonment." Article 22 (3) of the former Local Education Autonomy Act provides that "the provisions on the election of the Mayors/Do Governors under the Public Official Election Act concerning the election of the Superintendent of an Office of Education shall apply mutatis mutandis to the election of the Mayors/Do Governors." Under each of the above provisions, a person who commits an election crime as provided by Article 18 (1) 3 of the Public Official Election Act and for whom ten years have not passed since the suspension of the execution of a sentence was finalized or imprisonment was terminated shall be deemed to be the

Therefore, as to whether the plaintiffs constitute "election crime" under Article 18 (1) 3 of the Public Official Election Act, Article 18 (2) of the Public Official Election Act provides that "a person who commits an election crime under Chapter 16 Penal Provisions and a violation of the National Referendum Act" is "election crime". The plaintiffs were prosecuted as an act of violating the former Local Education Autonomy Act committed in the course of election at the superintendent of education on April 28, 2009, and this case's judgment was finalized. The facts of this case's judgment are as follows. However, in light of Article 22 (3) of the former Local Education Autonomy Act, which is the applicable law to the plaintiffs, Article 16 of the Public Official Election Act, Article 25 (1) 13 of the Public Official Election Act, Article 247 (1) of the Public Official Election Act, Article 230 (1) 4 of the Public Official Election Act, and Article 230 (1) 14 of the former Public Official Election Act, which is the most fundamental right of the plaintiffs, who committed an election crime under the State's democracy.

Therefore, the defendant's argument that the plaintiffs constitute an election crime is without merit.

C. Scope of damages

In calculating consolation money due to a tort, consideration of the victim's circumstances, such as the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim's intentional or negligent act, motive and cause of the harmful act, and attitude of the perpetrator after the tort, together with the circumstances on the part of the perpetrator, is consistent with the principle of fair liability for damages. The court may determine the amount of consolation money at its discretion, taking into account such various circumstances (see Supreme Court Decision 2013Da209831, Feb. 27, 2014, etc.).

In light of the above legal principles, the following circumstances acknowledged by the Defendant comprehensively considering the health care unit and the overall purport of arguments as to the amount of consolation money to be paid by the Plaintiff, namely, (1) the Plaintiffs suffered damages that could not exercise voting rights, which are basic and essential rights as a citizen due to the tort committed by public officials belonging to the Defendant; (2) the public officials belonging to the Defendant, without confirming the Plaintiffs’ criminal judgment even though they do not seem to depend only on computerized data inside the Defendant automatically generated; (3) the Defendant cannot review the judgment of entry into the convict list at the time of work process from the first instance to the trial; and (4) the KICS search system where the name of the crime was changed in the criminal trial process, despite the fact that the above changed contents were not reflected in the convict list, it appears that the Plaintiffs did not appear to have been aware of the fact that the Plaintiffs did not appear to have been aware of the fact that the Plaintiffs did not appear to have been responsible for consolation money due to the unlawful acts of public officials belonging to the Defendant; and (2) it appears that the Plaintiffs did not appear to have been aware of the Plaintiffs’ election campaign or other information.

3. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is partially unfair, it is revoked and the above-mentioned amount is ordered to be paid to the defendant. The remaining appeals by the plaintiffs are dismissed as they are without merit. It is so decided as per Disposition.

Judges Song Jae-ho (Presiding Judge)