Plaintiff 1 and one other (Law Firm East, Attorneys Seo Jung-hee et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Identity, Attorneys Jeong Il-an et al., Counsel for the defendant-appellant)

January 9, 2019

1. The Defendant shall pay to Plaintiff 1 1 109,317,59 won, 148,134,399 won, and 15% interest per annum from January 9, 2019 to February 13, 2019, and 15% interest per annum from the next day to the date of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 5% of the portion arising between the plaintiff 1 and the defendant shall be borne by the above plaintiff, the remainder by the defendant, 70% of the portion arising between the plaintiff 2 and the defendant, and the remainder by the above plaintiff, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 240,00,000 won with the amount of 442,857,143 won from October 11, 1978, the amount of 5% per annum from November 14, 1977 to the service date of a copy of each complaint of this case, and the amount of 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. The investigation and trial process against the plaintiff 1

1) The Plaintiff 1 was arrested on October 11, 1978 on charges of violating the Presidential Emergency Decree No. 9 for the protection of national security and public order (hereinafter “Emergency Decree”) and was executed on October 20, 1978, and the detention warrant was issued and executed as follows.

본문내 포함된 표 원고 1은 소외 1과 □□대학교 (학과 1 생략) 2학년에 재학 중인 자로서 1978. 10. 8. 경기 연천군 관인면 소재 군부대에서 복무 중인 친구를 면회 후 서울로 돌아오는 포천발 서울행 시외버스 내에서 같은 달 10. 같은 대학교 호국 행군 행사 예비 검열 시 학생들이 동교 교정에 운집하는 것을 계기로 불법학생시위를 선동하기 위하여 불온 유인물을 제작 배포할 것을 상호 공모하고, 가. 1978. 10. 8. 23:00경부터 다음날 02:00경 사이에 서울 성북구 (주소 1 생략) 소재 △△여인숙 22호실에서 위 유인물에 기재할 내용과 문구 등을 토의한 후 소외 1이 “□□대학교 민주 증언단” 명의로 “□□인이여 왜 침묵만 하고 있는가”라는 제목 하에 “.... 또한 김00 박사의 죽음도 사이비 언론에서는 그 사인을 평소의 조울증과 사생활의 고민에 의한 자살로 판정했으나, 사건 당시 보도 내용으로서는 그 사인이 도저히 이해되지 않으며 이것 또한 평소 김박사의 정부에 대한 비판적 태도에 불만을 느낀 중앙정보부에서 그를 용공분자로 몰아 고문 중에 죽였음을 쉽게 간파할 수 있다.... 이 일련의 학원사태가 모두 5.16 군사 쿠데타 이후 소위 10월 유신이란 전대미문의 가장 악랄한 팟쇼 독재 체제를 구축한 후... 그들의 유일한 간판인 껍데기 경제구조를 위해 독도까지 팔아넘기는 것도 서슴치 않는 현 독재 체제에 있음을 만천하에 증언한다.... 우리의 증언을 관철하기 위한 그 첫 번째 행동으로 호국행군을 우리 전 □□인의 증언의 광장으로 만들 것을 다짐한다”는 등 취지의 초안을 작성한 후 같은 날 09:30경 서울 도봉구 수유동 소재 4.19 탑 앞에서 함께 거사 결의를 새롭게 다짐하고 그 계획에 따라 원고 1이 같은 날 13:00경부터 15:00경 사이에 같은 대학교 신문사 내에서 위 초안을 정리, 같은 달 10. 00:00경부터 02:00경 사이에 성남시 (주소 2 생략) 소재 ◇◇야간학교 교재실에서 위 내용을 유인물 원지에 필경하여 그곳에 비치된 등사기를 사용, 미리 구입 준비한 갱지 16절지 약 480매에 복사함으로써 위 내용과 같은 유언비어의 왜곡된 사실이 담긴 표현물을 제작하고, 나. 같은 달 10. 09:10경 원고 1이 책가방 속에 동 유인물 약 480매를 넣어 교내에 반입, 같은 대학교 신문사 내에서 소외 1에게 살포 의뢰하여 소외 1이 같은 날 11:20경 같은 대학교 도서관 2층 창문에서 그 교정에 있는 약 500명의 같은 대학교 학생들을 향하여 살포함으로써 이를 배포하였다.

2) Plaintiff 1 was prosecuted with Seoul Criminal Court 78 Gohap684, Seoul Criminal Court. On December 28, 1978, the above court found Plaintiff 1 guilty of all the charges against Plaintiff 1 and sentenced Plaintiff 1 to imprisonment for 2 years and 6 months and suspension of qualification for 2 years and 6 months.

3) The plaintiff 1 and the prosecutor appealed against the above judgment of Seoul High Court No. 79No208. The above court reversed the judgment below on May 21, 1979, and sentenced the plaintiff 1 to one year and six months of imprisonment and suspension of qualification. The plaintiff 1 appealed against the above judgment, but around that time, the above appeal was withdrawn, and the above judgment became final and conclusive on June 14, 1979.

4) The Plaintiff 1 was detained on October 20, 1978 due to the violation of the above Emergency Measure No. 9, and was detained on July 17, 1979, and was under surveillance for about 271 days until the date of release.

B. The investigation and trial process against the plaintiff 2

1) The Plaintiff 2 was arrested on November 14, 1977 on charges of violating Emergency Measure No. 9 as follows, and the detention warrant was issued and executed on November 26, 197.

Around November 12, 1977, Plaintiff 2 was enrolled in the second grade of the Mapo-gu, Seoul Metropolitan Government University (department 2 omitted) located in Mapo-gu, Seoul. Nonparty 2, Nonparty 3, etc. of the Lee Jae-gu, and Nonparty 3, etc. of the same university, conducted demonstration with the police’s aid, such as “private teaching institute freedom” and “refisction removal.” On November 14, 1977, Plaintiff 2 was dissatisfied with the police’s complaint. On November 13:40, 197, Plaintiff 2, who was receiving teaching training in the Dong-gu, Mapo-gu, Seoul Special Metropolitan City (department 2 omitted), had approximately 68 students of the second grade of the same university, who were receiving teaching training in the Dong-gu, and had the two-year students of the Republic of Korea university, who were in the front of the Dong-dong University, and had the two-year students of the university, who were in the middle of the Dong-dong, 2000 and 2..

2) Plaintiff 2 was indicted as Seoul District Criminal Court 77 Gohap882, and the above court found Defendant 2 guilty on February 6, 1978 and sentenced Plaintiff 2 to three years and six months and suspension of qualifications.

3) Plaintiff 2 appealed against the above judgment of Seoul High Court No. 78No364, Jun. 29, 1978. The above court reversed the judgment of the court below on June 29, 1978, and sentenced Plaintiff 2 to two years of imprisonment and suspension of qualifications. The above judgment became final and conclusive around that time (hereinafter referred to as the above judgment and the judgment against Plaintiff 1 referred to as the “instant judgment subject to a retrial”).

4) Plaintiff 2 was detained on November 26, 197 due to the violation of Emergency Measure No. 9, and was under detention on May 3, 1979, and was under surveillance for about 524 days until the date of release.

C. Decision of unconstitutionality as to Emergency Measure No. 9

On March 21, 2013, the Constitutional Court rendered a ruling that Emergency Measure No. 9 is unconstitutional (see Constitutional Court en banc Order 2010Hun-Ba70, 132, 170 (Consolidation)) (see Constitutional Court en banc Order 2010Hun-Ba70, 132, and 170)). The Supreme Court, on April 18, 2013, ruled that the Emergency Measure No. 9 violated the fundamental rights guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose of failing to meet the requirements for exercising the Emergency Measure. Thus, prior to the cancellation or invalidation of Emergency Measure No. 9, this is unconstitutional and invalid as it violates the new Constitution, and further, even in light of the current Constitution, where the provisions guaranteeing fundamental rights infringed by Emergency Measure No.

D. New judgment and decision on criminal compensation against the plaintiff 1

1) Plaintiff 1 filed a petition for review of the judgment subject to a retrial with respect to Plaintiff 1 as Seoul High Court No. 201JNo. 41. On September 3, 2013, the aforementioned court rendered a judgment of not guilty on the ground that the facts charged against Plaintiff 1 constituted “when the Defendant was not guilty” under the former part of Article 325 of the Criminal Procedure Act, since the charges charged against Plaintiff 1 were instituted by applying Emergency Emergency Decree No. 9, which is unconstitutional and invalid. The said judgment became final and conclusive around that time

2) Based on the above acquittal judgment, Plaintiff 1 filed a claim for criminal compensation (Seoul High Court 2013Cor126). On September 24, 2013, the above court decided that Plaintiff 1 would pay KRW 52,682,400 as criminal compensation for detention, and KRW 1,614,100 as criminal compensation for expenses. The above decision became final and conclusive around that time, and Plaintiff 1 received the above criminal compensation around that time.

E. Family relationship and inheritance relationship of the plaintiffs

1) Around the time when Plaintiff 1 is detained as the fact of violation of Emergency Decree No. 9, Plaintiff 1’s family was detained as Plaintiff 1’s father, Nonparty 4, mother Nonparty 5, mother Nonparty 7, Nonparty 8, and Nonparty 9. Nonparty 4 died on December 16, 2011, and jointly inherited Nonparty 5, Plaintiff 1, Nonparty 6, Nonparty 7, Nonparty 8, and Nonparty 9 as indicated in the attached inheritance relationship. Nonparty 5 died on February 10, 2012, and jointly inherited Nonparty 1, Nonparty 6, Nonparty 7, Nonparty 8, and Nonparty 9 as indicated in the attached inheritance relationship.

2) Around the time when Plaintiff 2 is detained due to the violation of Emergency Decree No. 9, Plaintiff 2’s family member was the father, Nonparty 10, the mother, Nonparty 11, and two siblings. Nonparty 10 died on January 1, 1996, and jointly succeeded as indicated in the attached inheritance relationship, Nonparty 11, 2, and Plaintiff 2 jointly succeeded to the same as indicated in the attached inheritance relationship. Nonparty 11 died on January 1, 2002, and Plaintiff 2 jointly succeeded to the same as in the attached inheritance relationship.

F. New judgment and decision on criminal compensation against the plaintiff 2

1) Plaintiff 2 filed a petition for review of the judgment subject to a retrial with respect to Plaintiff 2, Seoul High Court No. 201JNo. 2012. On August 16, 2013, the aforementioned court rendered a judgment of innocence on the ground that the facts charged against Plaintiff 2 constituted “when the Defendant was not guilty” under the former part of Article 325 of the Criminal Procedure Act, since the facts charged against Plaintiff 2 was instituted by applying Emergency Decree No. 9, which is unconstitutional and invalid, and the said judgment became final and conclusive around that time.

2) On November 21, 2013, Plaintiff 2 filed a claim for criminal compensation with Seoul High Court No. 2013Corco17, based on the above acquittal judgment, and the above court decided that Plaintiff 2 would pay KRW 4,572,500 as criminal compensation for detention, and as criminal compensation for expenses. The above decision became final and conclusive around that time, and Plaintiff 2 received the above criminal compensation around that time.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 2, 4, 6, 8, 14, 25, 41, 47, and 48 (including serial numbers; hereinafter the same shall apply)

2. Judgment on the main defense of this case

A. The defendant asserts that the plaintiffs' lawsuit in this case is unlawful as there is no benefit of lawsuit, since a judicial compromise has been formed as to all damages incurred in relation to the decision subject to a retrial, including consolation money, pursuant to Article 18(2) of the Democratization Compensation Act, by applying for and receiving compensation by the plaintiffs pursuant to the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement (hereinafter "Act").

B. According to the court's fact-finding on the person related to democratization movements and the Compensation Deliberation Committee, the plaintiffs are recognized as a person related to democratization movements pursuant to the Democratization Compensation Act, and the plaintiffs 1 and 2 received living allowances, respectively, of KRW 10,60,80 on August 31, 2005 and KRW 24,911,880 on November 8, 2005.

However, there is no item corresponding to mental damage compensation under the Democratization Compensation Act and the relevant provisions of the Enforcement Decree of the same Act, and in the calculation of compensation, there is no appropriate compensation for mental damage not being considered at all, and thus, there is no adequate compensation for mental damage not being paid. Thus, prohibiting the State from claiming compensation for mental damage solely on the ground that the State consented to a decision of payment, such as compensation corresponding to positive and passive compensation, constitutes an excessive restriction on the State’s claim for compensation (see, e.g., Constitutional Court Order 2014HunBa180, Aug. 30, 2018).

Therefore, even if the plaintiffs agreed to decide on the payment of compensation, etc. and received compensation, it cannot be deemed that judicial settlement has been made even with respect to consolation money, which is mental damage. Since the plaintiffs seek the payment of consolation money in the lawsuit of this case, the above argument of the defendant is without merit.

3. Judgment on the merits

(a) Occurrence of liability for damages;

1) Relevant legal principles

A) In a case where a State agency received a public prosecution based on the evidence collected by an illegal act during the course of investigation and received a final judgment of conviction, but in a retrial procedure, the State’s liability for damages incurred due to res judicata, etc. can be recognized where the judgment of innocence became final and conclusive on the ground that the defendant’s case falls under “when there is no proof of criminal facts”

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 unconstitutionality or invalidation of the Emergency Decree is rendered, barring any other special circumstance, it cannot be deemed that the State’s conviction was rendered in the judgment subject to retrial. Thus, solely on the grounds that the judgment of innocence became final and conclusive, it cannot be deemed immediately deemed that the restoration by the conviction constituted a State’s illegal act, and as such, it cannot be deemed that the State’s liability for damages was recognized. In this case, it is difficult to separately examine whether there was a causal relationship between the State’s illegal act in the investigation process and the conviction thereof, and then determine whether to recognize the State’s liability for damages regarding the uniforms, etc. by the conviction. Accordingly, it can be recognized that the grounds for retrial under the latter part of Article 201 of the Criminal Procedure Act were highly probable if the grounds for innocence under the latter part of Article 251 of the Criminal Procedure Act were established.

B) Meanwhile, Article 8 of the former Constitution of the Republic of Korea (amended by Act No. 9 of Oct. 27, 1980) provides that “All citizens shall have dignity and value as human beings, and the State shall have the duty to ensure to the maximum extent possible fundamental human rights of the people.” Article 10 of the same Act provides that “All citizens shall have physical freedom. No person shall be arrested, detained, searched, searched, punished, forced labor and taken security measures except as provided by Act. No citizen shall be subject to any adviser, nor shall he/she be forced to make any unfavorable statement against himself/herself,” and “Arrest, detention, search, seizure, and search shall present a warrant issued by a judge at the request of a prosecutor (the main sentence of paragraph (3)),” and “any person who is arrested, detained, shall have the right to prompt assistance of counsel when he/she is arrested or detained.” However, in cases prescribed by Act, when the defendant cannot seek a criminal defense counsel on his/her own, the State has a duty to guarantee the defendant’s fundamental human rights without having a warrant issued by a judge.”

In addition, Article 201 of the former Criminal Procedure Act (amended by Act No. 3282 of Dec. 18, 1980) stipulates, “When there are reasonable grounds to suspect that a suspect has committed an offense and there are grounds falling under any of the subparagraphs of Article 70(1), a prosecutor may arrest a suspect upon request by a judge of the competent district court, and a judicial police officer may arrest a suspect with a warrant of detention issued by a judge of the competent district court upon request by a prosecutor who is requested by the prosecutor, and the judicial police officer may arrest the suspect upon request by a prosecutor

Therefore, it is unlawful for an investigative agency to arrest and detain a suspect without a warrant of detention when it arrests a suspect without a warrant of detention, and even in the case of arrest and detention by a warrant, it is unlawful without meeting the requirements for arrest and detention warrant of the Criminal Act, the Criminal Procedure Act, etc. In addition, the State as well as the government should not engage in physical and mental harm by using direct and indirect means such as advisory or intimidation to receive confessions for criminal prosecution.

(ii) the facts of recognition

In full view of the above evidence, Gap's evidence Nos. 17, 25, 28, 41, and 47, and the parties' personal examination results and the whole purport of the arguments against the plaintiffs, the following facts can be acknowledged.

A) On October 11, 1978, Plaintiff 1 was arrested without a warrant on the same day, and the materials of investigation cards were prepared on the same day. A detention warrant was issued on October 20, 1978, much more than 48 hours thereafter, and Plaintiff 2 was arrested on November 14, 197 without a warrant on November 26, 197, and was detained on November 26, 197. At the time of arrest, the Plaintiffs were not informed of the summary of the offense and the right to appoint defense counsel.

나) 피고 소속 공무원들은 수사과정에서 수시로 원고 ○○의 가슴과 뒤통수를 치고 발로 정강이 등을 찼고, 다른 피의자와 말이 맞지 않으면 구타를 하였으며 잠을 자지 못하게 하기도 하였다. 원고 2에 대해서는 손, 발, 팔꿈치, 자 등을 이용하여 원고 2를 때렸으며 철창타기나 책상 중간에 기괴한 자세로 버티게 하는 등의 가혹행위를 하였다.

C) The evidence of conviction in the judgment subject to a retrial is a statement or a written statement and a seizure in the court and investigation agency of the plaintiffs, co-defendants and related persons that correspond to the facts constituting the offense.

D) Even after the release of the Plaintiffs, public officials belonging to the Defendant found the Plaintiffs’ house, school, workplace, and their families on the grounds of their past records of violating emergency measures.

3) Establishment of tort

A) In light of the following circumstances revealed by the above facts, even if the plaintiffs were acquitted of violation of Emergency Decree No. 9 in a new judgment, it is reasonable to deem that the plaintiffs not guilty on the ground that they constitute “when there was no proof of criminal fact”, which was the ground for innocence under the latter part of Article 325 of the Criminal Procedure Act, if there was no ground for innocence.

(1) In the course of the investigation, public officials of the investigative agency, who are obligated to guarantee the fundamental human rights of the citizen and the constitutional rights, committed an infringement of human rights, such as illegal arrest and detention, adviser, and coercion of unfavorable statements, in investigating the Plaintiffs and the persons concerned.

(2) The above psychological pressure by infringement of human rights seems to be not only in the investigation process but also in the court and also in the court, and the statements of the plaintiffs and related persons who correspond to the facts constituting the crime seems to have no arbit

(3) If the instant judgment subject to a retrial excluded the statements of the Plaintiffs and related persons, the evidence of the remaining conviction is seized, and the above seized articles alone are not enough to be found guilty of the crime, and the above seized articles are also likely to have been illegally collected.

B) Therefore, the Defendant is obligated to compensate for mental damages suffered by the Plaintiffs who were convicted of having committed the above illegal act by the investigative agency, due to their failure to live a normal life as well as the time of the above return.

(b) Scope of damages;

1) Amount of consolation money

A) When a court calculates consolation money due to a tort, it also accords with the principle of fair compensation for damage, i.e., the victim’s intentional act, degree of negligence, motive for harmful act, cause, the perpetrator’s property status, and attitude of the perpetrator after the tort (see, e.g., Supreme Court Decision 2007Da77149, Dec. 24, 2009).

Meanwhile, in exceptional cases where damages for delay in tort compensation liability should be calculated from the date of the conclusion of arguments in fact-finding proceedings, it is necessary to appropriately increase the principal of consolation money at the time of the conclusion of arguments in consideration of the circumstances where compensation for consolation money in the amount deemed appropriate to be paid immediately as of the time of the establishment of the liability is delayed for a long time until the time of the conclusion of arguments. Furthermore, as in the instant case, in cases where a systematic and intentional act of violation of human rights by a public official belonging to the Defendant committed a serious act of violation of human rights, the need to restrain and prevent recurrence of similar cases should also be considered as an important reason in calculating consolation money (see Supreme Court Decision 2011Da38

B) In light of the characteristics of the tort against the plaintiffs' human rights and their illegality, the severity and period of the sentence against the plaintiffs, the period of 40 years from the time when the tort against the plaintiffs occurred, as seen in paragraph (d) below, there are considerable changes in the monetary value of the plaintiffs. Thus, the starting point of the damages for delay is exceptionally the starting day of the argument in this case, and considering all the circumstances shown in the argument in this case, such as the recognition amount of consolation money and equity in the similar state compensation judgment, etc., the amount of consolation money to be paid by the defendant to the non-party 4 and the non-party 5, who is the father of the plaintiff 1, 30,000,000 won, and the non-party 2, the non-party 10,000 won, and the father of the plaintiff 2, the non-party 10,000 won, and the father of the plaintiff 10,500,000 won, respectively.

(ii) inheritance relations;

As seen earlier, upon Plaintiff 1’s non-party 4’s death on December 16, 201, Nonparty 4 succeeded to KRW 30,923,076 (= KRW 30,00,000 + KRW 3/13, and fewer than KRW 3/13; hereinafter the same shall apply) of Nonparty 5, the wife, and Plaintiff 1’s 4,615,384 (=30,00,000 + 2/13). Since Nonparty 5 died on February 10, 2012, Plaintiff 1 succeeds to KRW 36,923,076 of the inherited property of Nonparty 5’s 30,000,000 + KRW 6,375,6365,75865,7565).

The plaintiff 2's non-party 10 died on January 1, 1996, and 50,000 won unique to non-party 10's wife x 21,428,571 won (=50,000,000 won x 3/7) x 14,285,714 won (=50,000,000 x 2/7) x 11). After that, the non-party 11 died on January 1, 2002, the plaintiff 2 succeeds to the shares of the non-party 11's inherited property 71,428,571 won (= unique reference material 50,000,0000 won + 21,428,571 won inherited from non-party 10). The plaintiff 2 succeeds to the shares of the non-party 15,2571/125,275.

C. Judgment on the defendant's argument

1) Claim for the completion of extinctive prescription

A) The parties’ assertion

The defendant asserts that the extinctive prescription of the damage claim against the defendant was completed at the expiration of five years from the around 1979 when the plaintiffs completed their life in prison and released from prison, and that the plaintiffs are not allowed as abuse of rights against the principle of good faith.

B) Determination

The exercise of a debtor's right of defense on the ground of extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act, and if an obligee is objectively unable to exercise his/her right, the obligor's assertion on the completion of extinctive prescription cannot be allowed as abuse of rights against the principle of good faith (see Supreme Court Decision 2009Da66969, Sept. 8, 2011, etc.). In cases where a public prosecution was instituted based on evidence, etc. collected through an unlawful act in the course of investigation and conviction became final and conclusive, but a judgment of innocence became final and conclusive in the retrial procedure, it is difficult for the obligee to expect the claim for damages against the State until the judgment of innocence becomes final and conclusive. Accordingly, the obligee's assertion on the completion of extinctive prescription against the pertinent claim for damages cannot be allowed as an abuse of rights. In such cases, barring any special circumstance, the obligee shall exercise his/her right within the period equivalent to the suspension of prescription under the Civil Act from the date the judgment of innocence becomes final and conclusive, and whether the right was exercised within the period (see Supreme Court Decision 21313.

In light of the aforementioned legal principles, as seen earlier, the Plaintiffs were arrested and detained without a warrant and prosecuted for an investigation, and during the criminal trial process, a judgment of conviction was rendered and became final and conclusive on the premise that the Emergency Measure No. 9 is valid. As such, under the circumstances where the validity of a judgment of conviction becomes final and conclusive, filing a lawsuit seeking compensation against the State by asserting that the State was unfairly detained on the premise that the previous judgment was wrong prior to the court’s judgment of conviction was erroneous in the past through retrial is maintained, it is difficult to reasonably expect from the perspective of ordinary people. Therefore, it is reasonable to deem that the Plaintiffs had an objective obstacle that prevents the Defendant from exercising the right to claim compensation against the Defendant until August or September, 2013, which became final and conclusive in the retrial procedure against the Plaintiffs. The instant lawsuit was filed on September 17, 2013, where six months have not elapsed thereafter.

Therefore, it is not permissible for the defendant to claim the completion of extinctive prescription as an abuse of rights against the principle of trust and good faith. Accordingly, the re-claim of the above plaintiffs pointing this out is reasonable, and the defendant's defense of extinctive prescription is therefore groundless

2) Claim for deduction

A) The Defendant asserts that if the Plaintiffs received criminal compensation in accordance with Article 6(3) of the Criminal Compensation and Restoration of Honor Act (hereinafter “ Criminal Compensation Act”), the amount should be deducted from the amount of compensation equivalent to the amount of compensation.

B) Article 6(3) of the Criminal Compensation Act provides that “When a person entitled to compensation under other Acts has received compensation for the same cause, the amount of compensation shall be determined after deducting the amount of compensation therefor.” In the process of calculating the amount of compensation, it is reasonable to deduct the amount of compensation first received under the aforementioned relevant provisions from the amount of compensation compensation in the order of the principal at the time the compensation is paid in accordance with the general principles of appropriation of performance prescribed in the Civil Act, corresponding to the amount of the compensation liability, and it is reasonable to deduct the amount of compensation from the amount of the compensation liability at the time the compensation is paid in accordance with the general principles of appropriation of performance prescribed in the Civil Act, and the amount of the compensation shall not be immediately deducted from the original amount of the compensation. However, in exceptional cases where the damages for delay of the compensation liability due to tort is calculated from the date of the closing of arguments at fact-finding courts, if the original amount of compensation for delay is above the amount of the compensation already received as of the date of the receipt of the compensation (see Supreme Court Decision 201

C) On September 24, 2013, Plaintiff 1 received a criminal compensation of KRW 52,682,400 for detention around that time after having received a decision on criminal compensation on November 21, 2013, and received KRW 101,865,60 for criminal compensation for detention around that time after having received a decision on criminal compensation on November 21, 2013, as seen earlier. Meanwhile, since the amount of consolation money for the Plaintiffs is more than the amount of the above criminal compensation, the said amount of consolation money should be deducted from the original amount of consolation money for the Plaintiffs (the compensation for the expenses under the decision on criminal compensation was incurred in the process of a new judgment, and is different from the cause of the instant judgment, thus not subject to deduction).

Therefore, Plaintiff 1’s claim of consolation money amounting to KRW 97,317,600 (=150,000,000 - KRW 52,682,400) and Plaintiff 2’s claim of consolation money amounting to KRW 98,134,400 (=200,000,000 - KRW 101,865,600).

(d)the initial date;

1) The plaintiffs seek for the payment of damages for delay calculated from October 1, 1978 or November 14, 1977, each of the plaintiffs illegally committed with respect to consolation money.

2) In principle, liability for damages arising from a tort does not have a separate notice of performance, and damages for delay occur at the same time as the liability is established. However, in cases where the amount of consolation money which reflects the national income level at the time of the conclusion of arguments, which is the basis for the calculation of consolation money, and the circumstances such as monetary value, etc., are significantly changed compared to the time of the tort, and where it is inevitable to increase the amount of consolation money, damages for delay of compensation liability due to a tort shall be deemed as from the date of the closing of argument at the fact-finding court, which is the basis for the calculation of consolation money (see, e.g., Supreme Court Decision 201

3) As long as a public official belonging to the defendant calculates the amount of consolation money by reflecting the increase in prices, national income level, etc. during a long period of time from October 11, 1978 or from November 14, 1977 to January 9, 2019, which was the date of the closing of the argument in this case, where the plaintiffs were unlawfully committed, the amount of consolation money shall be increased. Thus, it is reasonable to view that there is damages for delay in consolation money from January 9, 2019, which is the date of the closing of the argument in this case.

E. Sub-decision

The Defendant: (i) KRW 109,317,59 (i) KRW 97,317,60 of unique reference data + KRW 4,615,384 of consolation money inherited from Nonparty 4 + KRW 7,384,615 of consolation money inherited from Nonparty 5); and (ii) KRW 148,134,399 of consolation money (i.e., inherent reference data + KRW 98,134,400 of consolation money inherited from Nonparty 10 + KRW 14,285,714 of consolation money inherited from Nonparty 11 + KRW 35,714,285 of consolation money inherited from Nonparty 11); and (iii) as to whether the Defendant’s obligation to perform its duty exists or the scope thereof, the Defendant is obligated to pay damages for delay calculated from January 9, 2019 to February 13, 2019.

4. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Lee Sung-sung (Presiding Judge)

Note 1) The children of the former husband who married female her husband had entered the Republic of Korea.

Note 2) The relationship between the former and the latter’s wife