209 Doz. 91182 Compensation (as referred to)

1. 석 ㅇㅇ ( ㅇㅇ - ㅇㅇ )

2. 하ㅇㅇ ( ㅇㅇ - ㅇㅇ )

3. 석 ㅇㅇ ( 00 - 00 )

원고 1 내지 3의 주소 안산시 상록구 ㅇㅇ

4. 석 ㅇㅇ ( 00 - 00 )

Seoul Dobong-gu

5. 석ㅇㅇ ( 00 - 00 )

전주시 완산구 ㅇㅇ

6. 석ㅇㅇ ( 00 - 00 )

수원시 장안구 ㅇㅇ

7. 박ㅇㅇ ( ㅇㅇ - ㅇㅇ )

인천 남구 ㅇㅇ

8. 한 ㅇㅇ ( ㅇㅇ - ㅇㅇ )

전남 완도군 ㅇㅇ

19. 한 ㅇㅇ ( 00 - 00 )

전남 진도군 ㅇㅇ

10.한ㅇㅇ(ㅇㅇ-ㅇㅇ)

부천시오정구ㅇㅇ

11.한ㅇㅇ(00-00)

부천시원미구ㅇㅇ

12.한ㅇㅇ(ㅇㅇ-ㅇㅇ)

인천 부평구 ㅇㅇ

13. 장ㅇㅇ ( 00 - 00 )

14. 박ㅇㅇ ( ㅇㅇ - ㅇㅇ )

원고 13, 14의 주소 전남 진도군 ㅇㅇ

15. 장ㅇㅇ ( 00 - 00 )

부천시 소사구 ㅇㅇ

16. 장ㅇㅇ ( 00 - 00 )

서울 구로구 ㅇㅇ

17. 장ㅇㅇ ( ㅇㅇ - ㅇㅇ )

부천시 소사구 ㅇㅇ

18. 장ㅇㅇ ( 00 - 00 )

부천시 소사구 ㅇㅇ

[Judgment of the court below]

Attorney Song-chul et al.

Korea

A legal representative objection by the Minister of Justice;

Attorney Sung-hoon et al., Counsel for the defendant-appellant

July 21, 2010

August 11, 2010

1. 피고는 원고 석ㅇㅇ에게 1, 000, 000, 000원, 원고 하ㅇㅇ에게 500, 000, 000원, 원고 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ에게 각 200, 000, 000원, 원고 박ㅇㅇ에게 400, 000, 000원, 원고 한ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ, 한ㅇㅇ, 한 ㅇㅇ에게 각 80, 000, 000원, 원고 장ㅇㅇ에게 500, 000, 000원, 원고 박ㅇㅇ에게 250, 000, 000원, 원고 장이이, 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ에게 각 100, 000, 000원 및 각 이에 대하여 1980. 10. 25 .부터 2010. 8. 11. 까지는 연 5 % 의, 그 다음날부터 다 갚는 날까지는 연 20 % 의 각 비율에 의한 금원을 지급하라 .

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 60% is borne by the Plaintiffs, and the remainder 40% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

피고는 원고 석ㅇㅇ에게 6, 185, 886, 061원, 원고 하ㅇㅇ에게 1, 000, 000, 000원, 원고 석

ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ에게 각 500, 000, 000원, 원고 박ㅇㅇ에게 1, 340, 920, 000

원, 원고 한ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ에게 각 200, 000, 000원, 원고 장이

에게 1, 595, 652, 988원, 원고 박ㅇㅇ에게 400, 000, 000원, 원고 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ ,

장ㅇㅇ에게 각 200, 000, 000원 및 각 이에 대한 1980. 10. 25. 부터 이 사건 소장 송달

Until the date of full payment, 5% per annum, 20% per annum from the next day to the day of full payment.

H. D. D.

1. Basic facts

가. 수사 및 기소1 ) 중앙정보부는 1980. 8. 경 박ㅇㅇ이 남파되어 공작활동을 하였다는 진술을 확보하고, 박ㅇㅇ의 고향인 진도를 중심으로 내사를 하여 박ㅇㅇ의 외조카인 김ㅇㅇ, 고종 10촌 동생인 원고 석ㅇㅇ, 친구인 원고 장ㅇㅇ, 여동생인 원고 박○○ 등에 대한 수사를 진행하였다 ( 이하 원고 석ㅇㅇ, 장ㅇㅇ, 박○○을 ' 이 사건 피고인들 ' 이라 한다 ) . 2 ) 이후 다음과 같이 김ㅇㅇ은 간첩, 국가보안법위반, 반공법위반 혐의로, 원고 석ㅇㅇ은 간첩방조, 국가보안법위반, 반공법위반 혐의로, 원고 박ㅇㅇ, 장ㅇㅇ은 각 반공법위반 혐의로 각 1980. 10. 7. 서울지방검찰청에 송치되었고, 1980. 10. 25. 기소되었다 ( 이하 위 사건을 ' 1차 진도 간첩단 사건 ' 이라 한다 ) .

1① 김ㅇㅇ : 남파된 박ㅇㅇ을 따라 1964년, 1966년, 1971년 각 북한 지역으로 탈출한 후 다시 잠입하였고, 1966년 조선노동당에 입당하였으며, 1971년 진도군 임회면 일대 해안경비 상황을 북한에 보고하는 등 간첩행위를 하였고, 1977년 북한에서 탈출 후 잠입한 부친 김ㅇㅇ와 회합하였다 .

② 원고 석ㅇㅇ : 1966년 박ㅇㅇ과 접선하여 공작금을 수수하였고, 1973년 진도마을 해안가 경비상황 등을 박ㅇㅇ에게 보고하였으며, 박ㅇㅇ이 박○○, 박ㅇㅇ, 원고 장○○을 포섭하도록 편의를 제공하였다 .

③ 원고 박ㅇㅇ : 1975년, 1977년 김ㅇㅇ와 회합하고, 1975년 김ㅇㅇ, 1978년 김ㅇㅇ와 각 상면하고도 수사기관에 이를 고지하지 않았다 .

④ 원고 장ㅇㅇ : 1974년 박○○ 원고 석ㅇㅇ이 박ㅇㅇ, 박ㅇㅇ 를 포섭하는 데 편의를 제공하였다 .

3 ) 기소 당시 원고 석ㅇㅇ은 진도에서 김 양식업을 하였고, 원고 장ㅇㅇ은 의사로서 진도에서 의원을 운영하고 있었다 .

나. 유죄판결 서울형사지방법원에서 1981. 1. 30. 이 사건 피고인들의 공소사실 전부가 유죄로 인정되어 원고 석ㅇㅇ은 무기징역, 원고 박○○은 징역 1년 6월과 자격정지 1년 6월 , 원고 장ㅇㅇ은 징역 2년과 자격정지 2년을 각 선고받았다 ( 80고합684호, 이하 ' 이 사건 재심 대상판결 ' 이라 한다 ). 이에 대하여 이 사건 피고인들 및 검찰이 각 항소하였으나 , 서울고등법원에서 1981. 6. 4. 항소가 기각되었다 ( 81노691호 ). 원고 박○○은 상소권을 포기하였고, 원고 석ㅇㅇ, 장ㅇㅇ은 이에 불복하여 상고하였으나, 대법원에서 1981 .

9. 22. The dismissal of the appeal was final and conclusive (81Do1944) and the judgment of conviction became final and conclusive.

다. 출소 원고 석ㅇㅇ은 1998. 8. 15. 가석방으로 출소하였고, 원고 박○○은 1982. 4. 16. , 원고 장ㅇㅇ은 1982. 12. 15. 각 만기출소하였다 .

D. The Defendants of this case filed a request for a new trial on the part of the above Defendants among the judgment subject to a new trial (2008 inventory 9, hereinafter “the judgment of the new trial”). On January 22, 2009, this court rendered a statement in the status of no voluntariness due to adviser, assault, threat, etc., and the confession made before the public prosecutor was also made in the state of continuous trial without voluntariness, and thus, the admissibility of the evidence as requested by the public prosecutor, such as that the confession made before the public prosecutor was also made in the state of continuous trial without voluntariness, was all inadmissible, and each of the above defendants was acquitted on the grounds that there is no evidence to acknowledge that the Defendants committed a crime as stated in the facts charged, and the above judgment became final and conclusive on January 30, 20

마. 형사보상 1차 진도 간첩단 사건과 관련하여 이 법원에서 2009. 3. 13. 원고 석ㅇㅇ은 1, 051, 040, 000원, 원고 박ㅇㅇ은 98, 080, 000원, 원고 장ㅇㅇ은 136, 480, 000원의 각 형사보상금 지급이 인정되었다 ( 2009코7호 ) .

(f) Family relations;

원고 하ㅇㅇ은 원고 석ㅇㅇ의 처, 원고 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ는 원고 석ㅇㅇ과 원고 하ㅇㅇ의 자녀들이다. 원고 한ㅇㅇ, 한ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ, 한ㅇㅇ은 원고 박ㅇㅇ의 자녀들이고, 원고 박○○는 원고 장ㅇㅇ의 처, 원고 장ㅇㅇ, 장ㅇㅇ, 장이이, 장ㅇㅇ는 원고 장ㅇㅇ과 원고 박ㅇㅇ의 자녀들이다 .

G. At the time of arrest, detention, and seizure, the Defendant’s illegal act 1) committed an illegal investigation practice, including the violation of the National Security Act, such as forcing the subject without a warrant, and securing evidence by investigating for a long time. The Defendants of this case were forced to conduct an investigation without a warrant issued by a judge, as well as having not been given an opportunity to appoint and defend himself/herself, and were detained for an illegal confinement for a long time as follows.

B) In addition, the investigators belonging to the Central Information Department under the Defendant forced the instant Defendants to act on the part of the instant Defendants, and thereafter, without a judge’s warrant, arbitrarily confiscated radio, gold-in-house, pocket book, picture book, dictator, Do governor, etc. as evidence at the time of infringement of the right of interview and communication with the defense counsel. (2) Although the Defendants arrested and detained pursuant to the Constitution at the time of infringement of the right of interview and communication with the defense counsel had been guaranteed the right of free interview and communication with the defense counsel, the instant Defendants were subject to the prohibition of any interview with their family members including the defense counsel until they were indicted. (3) At the same time, the investigators belonging to the Central Information Department forced the instant Defendants forced the forced to make a confession by forcing them to act on the part of the instant Defendants, such as various advisers and saves, etc., and eventually, the said Defendants forced them to make a false confession during the process of the investigation, including the confession of the Defendants to the prosecution, and the confession of the Defendants by the Central Information Department.

4) Trial proceedings and criminal judgment

In the Seoul District Criminal Court, the first instance court, which was the legal basis of the case of the Jindo Spy Group, accepted the evidence that was made by adviser, return, or intimidation without disregarding all of the aforementioned arguments despite the assertion of the aforementioned illegal forced conduct, illegal confinement, adviser, return, or intimidation. As seen earlier, the entire facts charged against the Defendants were found guilty.

5) Defamation, etc. (Defamation, etc.) published false facts such as that the Defendants committed a espionage attack before and after the investigation and trial of the first Jindo espionage case, etc., through the media, and damaged the honor of the said Defendants and their families.

B) The Defendants were convicted of the instant crime due to harsh acts of adviser, etc. in the course of investigation, and mental injury and trauma caused by long-term illegal confinement, and the conviction was finalized by the judgment, and the said Defendants were reinstated in the poor environment where differentiated surveillance and restriction were imposed.

C) Even after release, the Defendants suffered from physical and mental symptoms, such as depressions, due to advisers, etc., by continuous surveillance and pressure, such as probation, and suffering from the said Defendants. As such, the Defendants and their families have been suffering from economic difficulties and mental harm, such as free choice of occupation, and have suffered from social isolation for a long time due to social isolation.

[ 인정근거 ] 다툼 없는 사실, 갑 제1 내지 15, 20, 21호증 ( 각 가지번호 포함, 이하 같다 ) 의 각 기재, 원고 석ㅇㅇ, 박ㅇㅇ의 각 본인신문 결과, 변론 전체의 취지

2. Occurrence of liability for damages;

Article 10 of the Constitution of the Republic of Korea provides that human dignity and value, the right to pursue happiness, the obligation of the State to guarantee the fundamental rights of the State, the personal liberty under the law, the arrest, the detention, the principle of legality and the due process of law (Paragraph 1), the prohibition of advisers and the right to refuse to make statements (Paragraph 2), the arrest and detention (Paragraph 3), the right to assistance of counsel in accordance with the warrant issued by a judge (Paragraph 4), the right to notice of the reason for detention (Paragraph 5), the right to limit the admissibility of confession (Paragraph 7), and the right to restrict the admissibility of confession (Paragraph 7), and the State declares that the State has the duty to protect the fundamental human rights of the people, guarantee the dignity and value of the people as human beings, and guarantee the right to pursue happiness and the right to receive a fair trial as the constitutional right.

Nevertheless, comprehensively taking account of the above facts, ① investigators belonging to the Central Information Department under the defendant did not comply with due process stipulated in the Constitution and the Criminal Procedure Act in the arrest and detention of the defendants of this case; ② violated the right to assistance of counsel guaranteed by the Constitution and the Criminal Procedure Act throughout the course of investigation; ③ Hahy investigation, tata and various advisers, external care, and intimidation, etc., and made evidence by means of false confessions from the defendants of this case; ④ The evidence of the facts charged was not admissible because most of the facts charged did not exist and thus, the court was found guilty of the facts charged against the defendants of this case, and the sentence was executed, and the punishment was executed. ⑤ The defendant announced false facts about the case of the Second Jindo Volunteer Sp Group as above through the media, thereby impairing the honor of the defendants of this case and sustained surveillance and pressure after release. Examining these series of acts, it is reasonable to see that the defendant, who is the State, has a duty to protect the people, thereby committing the tort of this case and his family members.

Therefore, pursuant to Article 2 (1) of the State Compensation Act, the defendant has a duty to compensate the plaintiffs for damages caused by such series of illegal acts as above.

3. Determination on the assertion regarding the extinctive prescription

A. Summary of the parties' arguments

For the following reasons, the defendant asserts that the claim for damages caused by the plaintiffs' illegal acts has already expired and expired by prescription.

① The Plaintiffs’ damages occurred from around August 1980 when the investigator affiliated with the Central Information Department under the Defendant had illegally arrested and detained the investigator, and the Plaintiffs came to know of the tort and the occurrence of the damages from that time, and the extinctive prescription of the right to claim damages ought to run. However, the instant lawsuit was filed after the lapse of the three-year extinctive prescription period.

1 ② 원고 석ㅇㅇ은 1998. 8. 15., 원고 박ㅇㅇ은 1982. 4. 16., 원고 장ㅇㅇ은 1982 .

12. On 25. 25. The case was brought to the Seoul District Criminal Court after having been convicted, and after having completed the term of punishment, and was released from the court, and became aware of the tort, including investigators belonging to the Central Information Department under the Defendant, and the occurrence of such damage. However, the case was brought to the court after the three-year extinctive prescription period from the date

③ On August 1980, which can be seen as tort committed by the Defendant, or after the lapse of five-year extinctive prescription (Article 96(2) and (1) of the National Finance Act) from the time when the Defendants were released after completing the term of imprisonment, the instant lawsuit was filed.

Accordingly, the plaintiffs asserts as follows.

① In the judgment of the retrial of this case, the Defendants of this case were acquitted and became final and conclusive.

1. Until 30.30., the legal effect of the conviction against the Defendants was maintained, and there was a legal disability that prevents the Plaintiffs from exercising their right to claim damages of this case against the Defendant. Accordingly, the extinctive prescription begins from the above date.

(2) If the above disability is de facto disability, the starting point of the extinctive prescription period is January 2009.

30. It shall be applied late to delay;

③ The Defendant’s assertion that the extinctive prescription of the right to claim damages of this case expired constitutes an abuse of rights against the principle of good faith.

B. The judgment of this Court

1) Even if the period of extinctive prescription has already lapsed, if the defendant's assertion of extinctive prescription constitutes an abuse of rights and thus cannot be accepted, the defendant shall be liable for damages. Therefore, first, we examine whether the defendant's assertion of extinctive prescription constitutes an abuse of rights.

2) The criteria for determining whether to abuse of rights

The exercise of a debtor's right of defense based on the statute of limitations is governed by the principles of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act. Thus, in special cases where the debtor, prior to the completion of the statute of limitations, has become unable or remarkably difficult to exercise the creditor's right or interruption of prescription, has committed an act that makes it unnecessary for the creditor to exercise his right, has objectively obstructed the creditor, or had the right holder trust it, or had the debtor present the same attitude that the debtor would not invoke the statute of limitations after the completion of the statute of limitations, or there is a great need to protect the creditor, and there are other special circumstances such as where other creditors under the same conditions receive the repayment of the obligation, etc., it is remarkably improper or unfair to allow the debtor to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith (see Supreme Court Decision 2002Da32332, Oct. 25, 2002)

Therefore, under this review, we examine whether there are special circumstances, such as whether there exists an objective disability for the plaintiffs to exercise their rights, whether there is a need to protect the creditors, etc. (In this regard, the defendant asserts that the defendant should not only the objective disability that the plaintiffs could not exercise their rights, but also the defendant's objection, such as making it impossible or remarkably difficult to exercise their rights or to extinctive prescription. However, the defendant's argument is rejected).

B) In light of the following circumstances as to whether there was an objective cause for an obligee to prevent the obligee from exercising his right, it shall be deemed that there was an objective disability that could not claim damages against the Plaintiffs for a period until January 30, 2009, which became final and conclusive by the retrial judgment against the Defendants of this case.

① While the Defendants were recognized as one of the major power agencies of the State, they were unlawfully committed and detained by investigators affiliated with the Gi Information Department, and were subjected to serious advisers and intimidation to the degree of causing danger to their lives. Even after the issuance of the warrant, the Defendants continued to make up for false confession against their free will without any pain and fear resulting therefrom.

② Although the Defendants denied the facts charged in the trial process, they did not accept at all. The Defendants appealed to the Supreme Court but were found guilty of all the facts charged, and the sentence of heavy punishment, such as imprisonment for life, was finalized against the said Defendants.

③ Even after the Defendants had completed their respective term of punishment, they were under security surveillance on the premise that they aided and abetted a espionage as well as aiding and abetting a espionage. In such a situation where the conviction has already become final and conclusive, it would be difficult to expect that the Defendants’ assertion that the Defendants did not assist and abetting a espionage by accepting the evidence proving the Defendants’ assertion that the Defendants’ act was not committed as an illegal adviser at the time of investigation, which was the basis of the judgment, was not committed, and that such act was not committed as aiding and abetting a espionage, from the perspective of ordinary public.

④ Illegal acts, such as the adviser, etc., committed within the State facility with the external appearance of his official duties as a public official. After the investigation and trial process, the Defendants and their families of this case, who were sentenced to a final judgment of conviction regarding the crime of espionage, etc. and were sentenced to imprisonment due to the failure to accept any assertion such as false confessions or manipulation of evidence, etc. by the adviser, which eventually led to the failure of the latter investigation and trial process, filed a lawsuit seeking compensation for damages arising from such unlawful acts against the State to which the person involved in such act belongs, on the premise that the final judgment of conviction was erroneous by the adviser and the manipulation of evidence, cannot be reasonably expected from the perspective of ordinary people, until the court receives a court’s public authority judgment that accepted the aforementioned assertion through retrial that only the former conviction was a person who

No. 1) If the defendant asserts that the extinctive prescription has expired on the premise that he could exercise his rights against the plaintiffs, it would not be the same as demanding that the law be impossible for the individual.

C) Whether there are circumstances, such as the need to protect creditors, and whether refusal to perform an obligation is remarkably unjust, etc.

In light of the following circumstances, the necessity to protect the Plaintiffs who were damaged by the illegal acts committed by investigators belonging to the Central Information Department affiliated with the Defendant in this case, while recognizing the Defendant’s rejection of the Defendant’s repayment of the obligation would not be remarkably unfair and unfair.

① As the act of adviser belonging to the Central Information Department, which led to the illegal act of adviser and evidence manipulation against the Defendants of this case, constitutes not only an illegal act that may not occur but also a serious human rights violation that may not occur again, there is a debate that the statute of limitations should not apply to such serious anti-human rights act internationally.

② Illegal acts committed by investigators belonging to the Central Information Department against the Defendants of this case, such as adviser, etc., are in excess of the degree that a State agency could normally block the Defendants in the course of performing its duties, and thus, such unlawful acts constitute cases where the relevant illegal act is extremely organized, suppression, and unsatisfy, and thus, its illegality is serious. However, the Plaintiffs, the victims of serious human rights violations, as the victims of serious human rights violations, suffered serious damage not only to the present day by suffering from serious shock in their body and mind, such as being sentenced to a final judgment of life imprisonment due to the suspicion of a harsh adviser and a spying act, etc., but also to the extent that normal life is impossible.

(3) In general, it is difficult to expect that citizens should first leave before any measure is taken by the State and prepare appropriate countermeasures against the illegality of the State. The State also needs to respect such expectations and trust of the people and to recover the living relationship already formed by the result of illegal measures of the State in order to correspondingly respect such expectations and trust of the people.

Although it is reasonable to set the statute of limitations for the plaintiffs, it would substantially block the passage through which appropriate compensation for damages can be paid through the judicial decision. In this case, the rejection of the plaintiffs' claims on the ground of the extinction of the statute of limitations would be remarkably unfair or unfair.

D) Sub-decisions

Therefore, in this case, since there were objective circumstances in which the plaintiffs could not exercise their right to claim, there is a great need to protect the plaintiffs, and there were special circumstances such as the recognition of extinctive prescription significantly unfair or unfair, the defendant's assertion of the completion of extinctive prescription constitutes an abuse of rights against the principle of good faith and thus, it cannot be allowed.

Ultimately, the defendant's assertion of extinctive prescription is without merit.

4. Scope of liability for damages

가. 원고들의 주장1 ) 피고는 원고 석ㅇㅇ에게 일실수익 손해로 불법체포된 때로부터 가석방된 때까지 어가 수입을 기준으로 한 총 수익 119, 926, 061원, 위자료로, ① 중앙정보부 소속 수사관에 의하여 불법체포된 기간인 1980. 8. 21. 부터 검찰로 송치된 1980. 10. 6. 까지 47일 동안 1일당 1천만 원의 비율로 계산한 4억 7천만 원, ② 검찰에 송치된 다음 날인 1980. 10. 7. 부터 가석방된 날인 1998. 8. 15. 까지 6, 522일 동안 1일당 1백만원의 비율로 계산한 6, 522, 000, 000원, ③ 가석방 다음날인 1998. 8. 16. 부터 이 사건 재심 판결 선고일인 2009. 1. 22. 까지 약 125개월 동안 월 1백만 원의 비율로 계산한 125, 000, 000원의 합계 7, 236, 926, 061원 ( = 119, 926, 061원 + 470, 000, 000원 + 6, 522, 000, 000원 + 125, 000, 000원 ) 에서 형사보상금으로 지급받은 1, 051, 040, 000원을 공제한 6, 185, 886, 061원 ( = 7, 236, 926, 061원 - 1, 051, 040, 000원 ) 및 이에 대한 지연손해금을 지급할 의무가 있다. 또한 피고는 위자료로 처인 원고 하ㅇㅇ에 대하여는 10억 원, 자녀들인 원고 석ㅇㅇ, 석 ㅇㅇ, 석 ㅇㅇ, 석ㅇㅇ에 대하여는 각 5억 원 및 각 이에 대한 지연손해금을 지급할 의무가 있다 .

2 ) 위와 같은 계산 과정을 거쳐, 피고는 원고 박ㅇㅇ에게 위자료 1, 439, 000, 000원에서 형사보상금으로 지급받은 98, 080, 000원을 공제한 1, 340, 920, 000원 ( = 1, 439, 000, 000원 - 98, 080, 000원 ), 자녀들인 원고 한ㅇㅇ, 한ㅇㅇ, 한ㅇㅇ, 한ㅇㅇ , 한ㅇㅇ에 대하여는 각 2억 원 및 각 이에 대한 지연손해금을 지급할 의무가 있다 . 3 ) 위와 같은 계산 과정을 거쳐, 피고는 원고 장ㅇㅇ에게 일실수익 손해로 불법체 포된 때로부터 가석방된 때까지 의사 수입을 기준으로 한 총 수익 61, 132, 988원과 위자료 1, 671, 000, 000원의 합계 1, 732, 132, 988원 ( = 61, 132, 988원 + 1, 671, 000, 000원 )에서 형사보상금으로 지급받은 136, 480, 000원을 공제한 1, 595, 652, 988원 ( = 1, 732, 132, 988원 - 136, 480, 000원 ), 처인 원고 박○○에 대하여는 4억 원, 자녀들인 원고 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ에 대하여는 각 2억 원 및 각 이에 대한 지연손해금을 지급할 의무가 있다 .

B. Even if the amount of damages for the portion of the claim for lost profits is recognized as property damage, if it is impossible to determine the amount of damages due to lack of proof, such circumstance may be considered as the ground for increase of consolation money (see Supreme Court Decision 2002Da53865, Nov. 12, 2004, etc.).

1차 진도 간첩단 사건 당시 원고 석ㅇㅇ은 진도에서 김 양식업을 하였고, 원고 장ㅇㅇ은 진도에서 의원을 운영한 의사였던 사실은 앞에서 본 바와 같으나, 지금으로부터 약 30년 전으로서 위 원고들이 강제연행된 1980. 8. 경을 기준으로 그 이후 발생한 통계 수입에서 중간이자를 공제하는 방식으로 일실수익을 산정하는 것은 사실상 부적절해 보이고, 아래 다항에서 보는 바와 같이 형사보상금 안에는 일반 손해배상에 있어서의 적극적 손해도 포함되어 있다고 할 것이므로, 이러한 제반사정을 고려하여 위 원고들의 일실수익 손해액은 위자료의 증액사유로 참작하도록 한다 .

(c) Amount of consolation money recognized;

나아가 위자료의 액수에 관하여 살피건대, 이 사건 불법행위의 반인권적, 조직적인 특수성과 그 불법의 중대함, 이 사건 불법행위가 일어난 시기 및 그 시대적 상황, 불법행위 당시 이 사건 피고인들의 직업 등 사회적 위치, 이 사건 피고인들에 대한 각 선고형의 경중 및 복역기간의 장단, 현재 생존 여부, 원고들의 가족관계, 재산상태, 유사한 국가배상판결에서의 위자료 인정금액과의 형평성, 이 사건 피고인들에게 각 지급된 형사보상금의 액수 ( 형사보상법 제4조 제2항, 제5조 제3항 등을 고려하면 형사보상금 안에는 일반 손해배상에 있어서의 적극적, 소극적 손해는 물론 위자료 손해까지 포함되어 있는 것으로 볼 수 있다. 그러나 위 법 제5조 제1항은 보상을 받을 자가 다른 법률의 규정에 의하여 손해배상을 청구함을 금하지 아니하고 있고, 원고들도 이 사건에서 자신의 일실수익 및 위자료에서 형사보상금을 공제한 금액을 구하고 있는 점에 비추어, 피고는 형사보상금 이외에 아래와 같은 위자료 지급 책임을 추가적으로 부담하여야 한다 ) 기타 이 사건 변론에 나타난 모든 사정을 종합하여 보면, ① 원고 석ㅇㅇ에 대하여는 10억 원, 처인 원고 하ㅇㅇ에 대하여는 5억 원, 자녀들인 원고 석ㅇㅇ, 석ㅇㅇ, 석이 ㅇ, 석ㅇㅇ에 대하여는 각 2억 원, ② 원고 박ㅇㅇ에 대하여는 4억 원, 자녀들인 원고 한ㅇㅇ, 한 ㅇㅇ, 한 ㅇㅇ, 한ㅇㅇ, 한ㅇㅇ에 대하여는 각 8천만 원, ③ 원고 장ㅇㅇ에 대하여는 5억 원, 처인 원고 박○○에 대하여는 2억 5천만 원, 자녀들인 원고 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ에 대하여는 각 1억 원을 인정함이 상당하다 .

(d) The assertion and determination on damages for delay;

1) The plaintiffs' assertion

The central information department and the prosecutor's office threatened the Defendants of this case from the time of arresting the Defendants to the time of prosecution. As such, since the end of illegal act is October 25, 1980, which is the date of prosecution, the date of prosecution, and therefore, the damages for delay to the Plaintiffs' damages should be calculated from the date of the end of illegal act.

2) Defendant’s assertion

If all damages for delay are recognized from the tort committed before 30 years, the damages for delay against the plaintiffs should be provided with unjust benefits. Thus, in the past of this case, the damages for delay against the plaintiffs should be calculated from the time when the plaintiffs filed the lawsuit in this case or the defendant's decision that the statute of limitations should be dismissed by abuse of rights, or from the time when the defendants of this case were released.

In addition, the initial date of the occurrence of damages for delay is the case of tort, and the calculation of damages for delay based on tort is based on the present point of time considering all the circumstances from the time of tort to the present point of time. Furthermore, damages for delay shall be subject to the extinctive prescription system separately. Thus, the lawsuit in this case shall be filed.

11. There is an obligation to pay only damages for delay within five years retroactively thereafter. 3) The judgment of this court is the starting point of counting damages for delay.

It is reasonable to view that, in the absence of a separate peremptory notice demanding the performance of an obligation for damages caused by a tort, damages for delay will be incurred from the date of the tort at the same time as the tort is established in light of the concept of fairness.

However, as in the instant case, in cases where a series of illegal arrest, detention, adviser, or cruel act committed by investigators belonging to the Central Information Department continues to overlap with each other, it is impossible or considerably difficult for the victim to clearly prove the existence of separate damages and their illegal act during the period of continuous commission of the illegal act.

In light of the following circumstances, in calculating damages for losses caused by a series of illegal acts or a series of continuous illegal acts as seen in the instant case, it is reasonable to order the payment of damages for delay for the damage compensation liability as claimed by the Plaintiffs from October 25, 1980 on which the Defendants were prosecuted as a result of the termination of the above adviser and cruel act.

① The Plaintiffs are seeking additional payment of damages for delay from the date of prosecution, which is the date of termination of the tort, after adding up damages to the entire series of illegal acts as seen above.

② Since damages equivalent to the amount of consolation money already occurred to the Plaintiffs as of the date of prosecution of this case, even if damages for delay were added from that day, it cannot be said that the Plaintiffs gain any unfair benefit.

③ Unlike the claim for damages arising from ordinary tort, there is no reasonable ground to add damages for delay at the time when the Plaintiffs demanded performance, etc.

B) Even after the Defendants were sentenced to imprisonment with prison labor by an unlawful judgment and released, they suffered from post-treatment due to continuous surveillance and adviser, their families have experienced economic difficulties, etc. Meanwhile, they have been interfered with the establishment of truth and life-saving campaign against the above Defendants, and have been isolated from society because they were born to a criminal recorder in a special public security case. As such, in the instant new judgment of this case, the Plaintiffs’ economic, physical, and mental suffering due to the Defendant’s tort has been continued until January 22, 2009, for which the verdict of innocence against the Defendants was rendered at the new judgment of this case, by January 22, 2009, after considering all the circumstances at the time of the closing of the arguments, even if the damages were to be calculated based on the monetary value at the time of the closing of the arguments, it cannot be said that the Plaintiffs gain double benefits. Accordingly, this part of the Defendant’s assertion is without merit.

C) Claim for damages for delay extinctive prescription

As long as a claim for the completion of extinctive prescription is not allowed by abuse of rights against the principle of good faith, it cannot be asserted for the completion of extinctive prescription as to the claim for damages for delay, which is the subordinate claim of the principal claim, and therefore, this part of the defendant'

E. Sub-committee

따라서 피고는 원고 석ㅇㅇ에게 10억 원, 처인 원고 하ㅇㅇ에게 5억 원, 자녀들인 원고 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ, 석ㅇㅇ에게 각 2억 원, 원고 박ㅇㅇ에게 4억 원, 자녀들인 원고 한ㅇㅇ, 한 ㅇㅇ, 한ㅇㅇ, 한ㅇㅇ, 한ㅇㅇ에게 각 8천만 원, 원고 장ㅇㅇ에게 5억 원, 처인 원고 박○○에게 2억 5천만 원, 자녀들인 원고 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ, 장ㅇㅇ에게 각 1억 원 및 각 이에 대하여 1980. 10. 25. 부터 피고가 그 이행의무의 존부에 관하여 항쟁함이 상당하다고 인정되는 이 사건 판결 선고일인 2010. 8. 11. 까지는 민법에서 정한 연 5 % 의, 그 다음날부터 다 갚는 날까지는 소송촉진 등에 관한 특례법에서 정한 연 20 % 의 각 비율에 의한 지연손해금을 지급할 의무가 있다 .

5. Conclusion

Thus, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit.

Judge Kang-young of the presiding judge

Kim beneficiary-line

Maximumization