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(영문) 서울고등법원 2016.4.8.선고 2015나2021453 판결
손해배상(기)
Cases

2015Na2021453 Compensation for damages

Appellant Saryary appellant

1. R:

2. AD;

6. AE;

7. AF;

8. AG;

9. AH;

10,N

11. AJ;

12. S;

16, AP

17. A Q.

18. AR

19. A

AV

25. AW;

26. AX;

27. AY;

28. B

32.BD

33.BE.

34.BF

35, BG

36. Telecommunication

39. BK

40. BL;

41.M

42.BN

43.BO

44.BP

45. B Q

Plaintiff Appellant

3. C.

4. D;

5. E.

13.F

14. G

15. H;

20. I

21. J

22. K;

23. L;

29. M

30.N

31. 0

37. P;

38. Q (BT before the opening of name);

Defendant Appellants and Appellants

Korea

The first instance judgment

Seoul Central District Court Decision 2013Gahap54515 Decided April 7, 2015

Conclusion of Pleadings

2016, 23.23

Imposition of Judgment

April 8, 2016

Text

1. The part against the defendant among the judgment of the court of first instance is revoked, and all of the plaintiffs' claims corresponding to the revoked part are dismissed.

2. All appeals filed by the plaintiffs are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiffs 5% interest per annum from October 30, 1978 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.

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs seeking payment under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiffs the money in the corresponding column of "appeal" as stated in the attached Table, as well as 5% per annum from October 30 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

B. Defendant

The text of paragraph (1) is as follows.

Reasons

1. Basic facts

A. The judgment of conviction against Plaintiff R, S, A, B, and T and the enforcement of the sentence

1) Plaintiff R and S were detained on October 30, 1978 and charged with violation of Emergency Decree No. 9 by the Seoul District Criminal Court 78Dahap714 on November 23, 1978. The summary is as follows: (a) Plaintiff R and S, who retired from the department of social work of “UU University,” in collusion with WW and X, made up KRW 1,000 copies, stating the abolition, etc. of the Constitution of the Republic of Korea from May 12, 1978 to the 14th of the same month; (b) Plaintiff R and S sent and distributed them by inserting them by inserting them to each university’s address and representative; (c) Plaintiff R and X, etc., who were enrolled in the department of social work of the KU University; and (d) produced and distributed them by openly 50 out-to-dated students from each university and college by openly inserting them from June 19, 1978 to 0.

On February 23, 1979, the above court found Plaintiff R and S guilty of all the charges, and sentenced Plaintiff B and S to four years of imprisonment. The Seoul High Court, which was the appellate court, determined that the above sentence is too heavy on June 29, 1979, and sentenced Plaintiff R and S for three years of imprisonment and three years of suspension of qualification (hereinafter referred to as Plaintiff R and S). The above judgment was revoked on July 24, 1979; Plaintiff B and C were released from their respective appeals on July 18, 1979; Plaintiff B and C were released on July 10, 197; Plaintiff B were released on July 10, 197; Plaintiff B and C were released on July 10, 197; Plaintiff B were released on July 24, 1978; Plaintiff C and C were released on the 19th 7th 1st 19th 2nd 78th 19th 2nd 1978.

위 법원은 1979. 1. 12. 위 공소사실을 모두 유죄로 인정하고 원고 A, B에게 징역 4년 및 자격정지 4년을, 원고 T에게 징역 3년 및 자격정지 3년을 각 선고하였다. 항소심인 서울고등법원은 1979. 6. 20. 79노232호로 위 선고형이 너무 무겁다고 판단하여 이를 파기하고 원고 A, B에게 징역 3년 및 자격정지 3년을, 원고 T에게 징역 2년 및 자격정지 2년을 각 선고하였다(이하 '원고 A, B, T에 대한 재심 대상판결'이라 하고, 위 '원고 R, S에 대한 재심대상판결'과 함께 가리킬 땐 '이 사건 각 재심 대상판결'이라 한다). 위 판결은 원고 A가 1979. 7. 21., 원고 B이 1979. 7. 28., 원고 T가 1979. 7. 31. 각 상고를 취하하여 각 확정되었다.

3) The Plaintiff R, S, A, B, and T (hereinafter “instant principal”) was released respectively from the suspension of execution on August 15, 1979, while serving in prison according to the sentence sentenced as above.

B. Binding of new judgment

1) On April 11, 201, Plaintiff R and S filed a petition for a new trial against Plaintiff R and S with Seoul High Court Decision 201No60 on April 11, 201. On June 5, 2013, the said court rendered a decision to commence a new trial on the ground that the Emergency Measure No. 9 was unconstitutional and void from the beginning, and the said decision became final and conclusive around that time.

On July 26, 2013, the above court rendered a not-guilty verdict pursuant to the former part of Article 325 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9 applied to Plaintiff R and S is unconstitutional since it was unconstitutional, and thus the defendant's case is not a crime. The above judgment became final and conclusive on August 3, 2013.

2) On March 24, 2011, Plaintiff A, B, and T filed a request for a new trial against Plaintiff A, B, and T with Seoul High Court Decision 201Reno34 (Seoul High Court). On July 30, 2013, the said court rendered a decision of commencing a new trial on the ground that the Emergency Measure No. 9 was unconstitutional since the beginning, and the said decision became final and conclusive around that time.

On September 10, 2013, the above court rendered a not-guilty verdict pursuant to the former part of Article 325 of the Criminal Procedure Act on the ground that the Emergency Measure No. 9 applied to Plaintiffs A, B, and T constituted unconstitutionality and invalidation, and thus the defendant's case is not a crime. The above judgment was finalized on September 18, 2013.

1) Plaintiff R and S filed a claim for criminal compensation with Seoul High Court No. 2013co95, and the above court rendered a decision on criminal compensation on November 5, 2013 to pay KRW 56,376,000, respectively, to Plaintiff R and S. The above decision became final and conclusive around that time.

2) Plaintiff A, B, and T filed a claim for criminal compensation with Seoul High Court No. 2013co137, and the above court rendered a decision on criminal compensation on November 26, 2013 to pay KRW 56,376,000 each to Plaintiff A, B, and T. The above decision became final and conclusive around that time.

D. The plaintiffs' relationship

1) AE, AF, AG, AH, AI, and AJ as a father, mother, and sibling, around the time when Plaintiff R was detained, the family member was deceased on January 18, 1997. On June 16, 1987, Plaintiff C married with Plaintiff R, and Plaintiff D was born between Plaintiff C and Plaintiff E, respectively.

2) AO, Plaintiff AP, Q, and R were members of the family at the time when the Plaintiff S was detained, and there was a network AO, Plaintiff AP, Q, and R. The network AM died on January 10, 1989; the network AO died on March 25, 2002; and the network AO on December 1984. The Plaintiff F married with the Plaintiff S around 1981, and the Plaintiff G and H were born between them.

3) AW, AX, and AY were the father’s father, mother, and sibling, around the time when Plaintiff A was detained, and there was Plaintiff AW, AX, and AY. The net AU died on March 10, 203. On September 16, 1985, Plaintiff 1 married with Plaintiff A, and among them, Plaintiff J AZ, Plaintiff CA, and Plaintiff L were born respectively.

4) Around the time when Plaintiff B was detained, there was Plaintiff BE, BF, and BG as a father’s net BC, mother BD, and sibling. The network BC died on December 29, 1996. The Plaintiff was married with Plaintiff B on December 29, 1996. The Plaintiff was married with Plaintiff B, and the Plaintiff NH and the Plaintiff were born among them.

5) Around the time when Plaintiff T was detained, there was Plaintiff BL, BM, BN, BO, BP, and Q as his father, mother BK, and sibling. On February 3, 2006, the deceased on February 3, 2006, Plaintiff P married with Plaintiff T on October 23, 1986, and between them, Plaintiff (former BT) was born.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 (including paper numbers; hereinafter the same shall apply), 2 through 10, and the purport of the whole pleadings

2. Determination on the main defense of this case (whether the part of the lawsuit of this case claiming compensation for damage inherent to the plaintiff A and B is legitimate)

A. As to the part of the lawsuit in this case that the plaintiffs A and B sought unique damages due to the tort committed by public officials belonging to the defendant, the defendant shall be deemed to have reached a judicial compromise under the Civil Procedure Act regarding damages suffered by the above plaintiffs in relation to democratization movements pursuant to Article 18 (2) of the Democratization Compensation Act by consenting to the decision of payment of compensation, etc. under the Act on the Restoration of Honor to and Compensation to Persons Related to Democratization Movement (hereinafter referred to as the "Act on the Compensation for Democratization Movement"). Thus, the above part of the plaintiffs' claim in this case in this case is

B. If the legislative purpose of Article 18(2) of the Commercial Act of the Act on the Compensation for Democracy has consented to the decision of payment of compensation and medical allowances (hereinafter referred to as "compensation, etc.") in addition to the legislative purport of Article 2 subparagraphs 1 and 2(d) of the same Act, the contents of Articles 10(1), 14(1), and 18(2) of the same Act, Article 20 subparag. 3 of the Enforcement Decree of the Act on the Compensation for Democracy (attached Form 10), the consent prepared and submitted by the applicant, and the contents of the application, the legislative purpose of Article 18(2) of the Commercial Act of the Act on the Compensation for Democracy has reached the decision of payment of compensation and medical allowances, such effect as judicial compromise, in particular as the restoration of honor of persons related to the democratization movement and the Compensation Deliberation Committee (hereinafter referred to as the "Council of Members") prior to the lawsuit by granting res judicata effect, after considering the fact that the applicant has consented to the decision of payment of compensation by the Committee, etc.

C. In full view of the purport of the entire pleadings as a result of inquiry into the commission of the first instance court, ①

On May 15, 2001, Plaintiff A was designated as a person related to democratization movements related to Plaintiff A and B's decision of the Committee on April 3, 2001. After that, according to the Committee's decision to pay compensation, etc., Plaintiff A shall be deemed to have received KRW 14,765,40 as living allowances for detention for 390 days around August 22, 2005, Plaintiff B shall be deemed to have received KRW 11,736,60 as living allowances for detention around 310 days around 205, and Plaintiff B shall have the same effect as that for Plaintiff B submitted to the Committee in relation to this case by signing and sealing a written request stating that "At the time of receiving each of the above compensation, the above Plaintiffs shall not raise an objection to the decision of compensation, receive compensation, etc., and shall not make any claim again for the same method as that of this case."

Ultimately, among the instant lawsuits, the part claiming damages inherent in the Plaintiff A and B is unlawful as there is no benefit in the protection of rights.

3. The plaintiffs' assertion

A. In the meantime, even though it is difficult to see that BS former president is a national crisis situation that needs to cope with national emergency measures such as the exercise of emergency measures, the head of BS former president publicly announced the long-term authority and issued the emergency measures No. 9, etc. to suppress the opposing power of the former Constitution (wholly amended by Act No. 9 of October 27, 1980, and hereinafter referred to as the “former Constitution”). In light of the content, the emergency measures are unconstitutional measures that seriously infringe on the fundamental rights of the people, such as the warrant requirement and freedom of expression under the Constitution. Accordingly, the exercise of emergency measures by BS former president, and the act of investigation, trial, etc. by a public official intentionally violates the statutes while performing his/her duties, and the Defendant shall compensate for damages suffered by the Plaintiffs.

B. Preliminaryly, investigators, etc. employed by the Defendant were illegally arrested and detained without a warrant in the course of investigating the instant persons who violated emergency measures, and committed cruel acts such as adviser, etc. while restricting their meetings by attorneys and their family members. Each protocol of examination prepared without voluntariness was used as evidence of conviction in the judgment of retrial, and the instant parties were detained by continuous surveillance or preliminary autopsy from the Defendant even after release. Accordingly, the Defendant is able to do so.

The damages suffered by the plaintiffs due to illegal acts committed after death, trial process, and release shall be compensated.

4. Determination

A. The primary argument that an emergency measure constitutes a tort and a criminal investigation and trial based on the exercise of the presidential emergency measure. In addition, Article 53 of the former Constitution itself lacks the requirements per se as the basis for the issuance of the emergency measure. As a fundamental element of democracy, 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, petition right, and academic freedom (see, e.g., Supreme Court en banc Order 201Hu689, Apr. 18, 2013). However, even if the emergency measure becomes null and void ex post by a court, the exercise of the presidential emergency measure based on the latter Constitution is a state action with a high level of political responsibility for the entire people, and thus, the President is not obliged to exercise the legal obligation corresponding to individual rights, and thus, it cannot be viewed that the exercise of the president’s rights constitutes a tort under the civil law with respect to individual citizens (see, e.g., Supreme Court Decision 2012Da482826, Apr. 26, 2015).

B. As to the conjunctive assertion that an investigation and punishment based on Emergency Measure No. 9 constitute a tort

1) We examine the assertion that an investigation and trial based on Emergency Measure No. 9 constitute a tort.

A) In a case where the penal law becomes retroactively effective due to the Constitutional Court’s decision of unconstitutionality or is declared unconstitutional or null and void by a court, even if an investigation is initiated based on the relevant law before the said law is declared unconstitutional, and a public prosecution is instituted and a judgment of conviction is rendered, such circumstance alone alone does not lead to the State’s liability for damages arising from a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act. Although the Emergency Decree No. 9 is null and void as seen earlier, it is difficult to deem that a judicial act by a judge who was declared guilty by means of an investigation agency’s act of arrest and detention of a suspect without a warrant under the Emergency Decree, which was enforced at the time of the enforcement of the Emergency Decree, and who was found guilty by applying the Emergency Decree No. 53(4) and (2), constitutes a tort by a public official’s intentional or negligent act as long as the Emergency Decree No. 9 is not declared unconstitutional or void.

However, in full view of the contents of the facts constituting an offense charged, the existence of evidence to acknowledge the conviction, the grounds for the decision on commencing a retrial, the circumstances leading the person involved in the case to be acquitted, and the reasons for the decision on commencing a retrial under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidation of Emergency Measure No. 9, if there was no reason for innocence under the latter part of Article 325 of the Criminal Procedure Act, and there was a high probability of causation between the State’s act committed in the course of investigation and the conviction, and accordingly, the State’s liability for damages can be recognized for a return of conviction, etc. by conviction (see Supreme Court Decision 2013Da217962, Oct. 27,

B) According to the above facts, the facts of this case were arrested without a warrant on suspicion that the principal of this case violated Emergency Measure No. 9, and the conviction became final and conclusive upon conviction.

However, in light of the above legal principles, the act of performing the investigation by arresting and detaining the instant parties without a warrant pursuant to Emergency Measure No. 9, which was in force at the time, and conducting the investigation and instituting a public prosecution, or the judicial duty of a judge who has rendered a judgment of conviction, shall not be deemed as an act conducted pursuant to Emergency Measure No. 9, which was not declared unconstitutional at the time as unconstitutional,

C) Furthermore, in light of the following circumstances, it is difficult to view that there was a high probability proof as to the fact that there was a cause of innocence under the former part of Article 325 of the Criminal Procedure Act, such as the unconstitutionality and invalidity of Emergency Measure No. 9, etc. as to the criminal facts of the instant case, in the event that there was no cause of innocence under the former part of Article 325 of the Criminal Procedure Act regarding the facts of the instant case in question, which

Therefore, it cannot be said that the defendant's liability for damages is recognized.

① As to the instant judgment subject to a retrial, the Supreme Court en banc Order 201 en banc Order, April 18, 2011, April 201, 201, supra, held that the Emergency Measure No. 9 was unconstitutional and invalid from the beginning.

The reason was that this constitutes a ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act, and it did not constitute a ground for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act.

② The judgment subject to a review against Plaintiff R and S cited as evidence of conviction each statement of the interrogation protocol of each of the plaintiffs against the above plaintiffs, which was prepared by a prosecutor and judicial police officer regarding the facts constituting a violation of Emergency Decree No. 9, and 150 copies of the seized letter bags, 150 copies of the seized letter bags, and 1 copy of the glass 1. Meanwhile, the judgment subject to review against Plaintiff T, B, and B shall be admitted as evidence of conviction. Meanwhile, the judgment subject to review against the above plaintiffs shall include the above plaintiffs’ legal statement, each statement of the interrogation protocol of each of the plaintiffs prepared by the prosecutor, each of the interrogation protocol of the plaintiffs against the above plaintiffs prepared by the judicial police officer, each of the statements of the plaintiffs, BU, and BV, each of the certified copies of the interrogation protocol of the plaintiffs, BU, and BV (BW 1, BY 1, B 1, 1, CA1, 3B 1).

However, the court below found the plaintiff S to be guilty of the violation of law by mistake of facts or misapprehension of legal principles, and the sentencing was too unfair. However, in light of the records, the court below held that the plaintiff S could have acknowledged the facts charged as a result of reviewing the evidence duly adopted by the court below and especially the fact that the plaintiff S led to confession of the facts in the court below. The plaintiff R only dispute the above appellate court's grounds for appeal, and it seems to have recognized the facts charged itself. According to the facts charged against the plaintiff R and S, all the place where inducement was produced was made was the plaintiff S's own, and it is difficult to conclude that the plaintiff Gap's act was unlawful in the process of manufacturing the plaintiff Gap's 1, B and T, and the defendant 1's act of distributing the plaintiff's 1, the defendant 1, the defendant 2, and the defendant 1, the defendant 1, the defendant 1, the defendant 2, and the defendant 1, the defendant 1, the defendant 2, and the defendant 1, the defendant 1, the defendant 2, and the defendant 3's appeal.

③ According to the Emergency Measure No. 9, which was enforced at the time, the act of openly denying, opposing, slandering, slandering, or distorting facts, or disseminating, or distort the facts, or producing and distributing, etc., the expressive materials containing the contents of the said act was prohibited by expressive materials such as a document or document, etc., and thus, the act of the instant principal’s written indictment was in violation of Emergency Measure No. 9 at the time.

2) Meanwhile, the Plaintiffs asserted that the instant parties were harshly arrested and detained and detained by the investigators affiliated with the Defendant without a warrant and had their right to assistance of counsel during the investigation process, and that they were unfairly detained by violating the provisions of the Criminal Procedure Act at the time, and that they were unfairly detained by the instant parties in violation of the provisions of the Criminal Procedure Act at the time. This appears to have the purpose of seeking compensation for damages arising from individual tort in the course of arrest investigation by itself. Accordingly,

A) Comprehensively taking into account the aforementioned facts and the overall purport of the arguments in the first instance court’s testimony, Plaintiff S, A, and T, the following facts are revealed: (a) assault or cruel act was committed by the Defendant investigators in the course of arrest and police investigation with respect to the instant parties; (b) at the time exceeding the detention period under the Criminal Procedure Act (amended by Act No. 3282, Dec. 18, 1980; hereinafter referred to as the “former Criminal Procedure Act”) and the prosecutor’s custody period under the Criminal Procedure Act (amended by Act No. 3282, Jan. 12, 1980; hereinafter referred to as the “former Criminal Procedure Act”); and (c) the facts that the instant parties were detained after the instant parties were forced to contact with, and could not interview, family members, etc.; and (d) this constitutes intentional or negligent

B) However, the instant lawsuit was filed on September 17, 2013 after five years from August 15, 1979 when the principal of the instant case was released as suspension of execution of punishment, and barring any special circumstance, barring any special circumstance, the claim for damages arising from the said tort was extinguished by prescription (Article 71 of the former Budget and Accounts Act (wholly amended by Act No. 4102, Mar. 31, 1989). The Budget and Accounts Act was repealed by Article 2 of the Addenda to the National Finance Act, Oct. 4, 2006).

C) As to this, the Plaintiffs asserted that the Defendant’s defense of extinctive prescription constitutes an abuse of rights, since there exist objective grounds for obstructing creditors from exercising their rights until the instant parties rendered a final and conclusive verdict of not guilty through a retrial.

The exercise of a debtor's right of defense based on the statute of limitations is also subject to the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, if there are special circumstances, such as the obligor's exercise of a creditor's right or the interruption of prescription before the expiration of the statute of limitations is impossible or remarkably difficult, or the obligor's conduct was conducted to believe such measures are unnecessary, or the obligee was objectively obstructed from exercising a right, or the obligor did not invoke the statute of limitations after the expiration of the statute of limitations, the obligor's refusal to perform the obligation is clearly unreasonable or unfair due to such special circumstances as the obligor's refusal to perform the obligation is not allowed as an abuse of rights against the principle of good faith. In addition, an evaluation of the statute of limitations defense based on the circumstance that the obligee was unable to exercise one's right objectively against the principle of good faith and the principle of good faith, which is the basic principle of disability and disability of the obligor, and the obligor's obligation to protect the expiration of the statute of limitations cannot be acknowledged as abuse of rights by the State.

Based on the above legal principles, the act of issuing Emergency Measure No. 9 by the President BS prior to the occurrence of the case constitutes a tort by a public official's intentional or negligent act.

In light of the above, the defendant's defense of extinctive prescription cannot be allowed as it constitutes an abuse of rights, since it is difficult to view that there was a high probability of proof as to the fact that there was a ground for innocence under the latter part of Article 325 of the Criminal Procedure Act, rather than a retrial commencement or a judgment of not guilty. As seen earlier, the defendant's defense of extinctive prescription cannot be allowed as it constitutes an abuse of rights. the plaintiff who was alive at the time was aware of this part of the tort since he had been completed for more than 30 years since the completion of detention.

Ultimately, it is difficult to accept the Plaintiffs’ assertion seeking damages due to this part of tort.

3) We examine the assertion that the Plaintiffs suffered emotional distress due to the Defendant’s surveillance, confinement, etc. after the Defendant was released.

The statements in Gap evidence Nos. 13, 17, and 20 and the plaintiff's newspaper of the first instance court are insufficient to recognize that public officials belonging to the defendant continuously engaged in surveillance or confinement of the principal of this case to the extent that they constitute tort against the plaintiffs after the release of the principal of this case, and there is no other evidence to acknowledge this otherwise. Therefore, the plaintiffs' assertion cannot be accepted ( even if there was such unlawful act as above, as seen earlier, the plaintiffs can claim State compensation against the defendant from the date of termination of the individual tort as seen earlier. Since it is difficult to view that the tort of this case was continued from September 17, 2013 to five years since the filing of the lawsuit of this case, the right to claim compensation against the above unlawful act of this case expired by prescription, and as seen earlier, the defendant's defense of extinctive prescription cannot be seen as an abuse of rights).

5. Conclusion

Therefore, the part of the lawsuit in this case against the defendant in the judgment of the court of first instance other than plaintiffs C, D, E, F, G, H, I, J, K, K, M, M, N, P, P, Q is unfair, and it is revoked by accepting the defendant's appeal and all of the plaintiffs' claims corresponding to the revoked part are dismissed. The plaintiffs' appeal is dismissed on the ground that the plaintiffs' appeal is without merit.

Judges

the presiding judge and deputy judge

Judge Lee Ro-man

Judge Choi Ho-hoon

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