2013 Doz. 54430 Damage, Claim

1. A;

2. B

3. C.

4. D;

Korea

April 3, 2015

2015,5.1

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff 403,256,296 won, plaintiff 2, C, and D 235,504,197 won and each of the above amounts shall be paid 5% per annum from July 2, 1976 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 complete payment.

1. Basic facts

(a) A conviction, etc. of violation of subparagraph 9 of an emergency measure against land E;

1) On June 16, 1976, 3, and 12, the deceased E was forced to proceed without a warrant and was indicted for the violation of the Presidential Emergency Decree for National Security and Public Order Protection (amended by Presidential Emergency Decree No. 9 on May 13, 1975, released by Presidential Notice No. 67 on December 7, 1979; hereinafter referred to as "Emergency Decree No. 9"), and the court of first instance (Cheongju District Court 76, 175, Chungcheong Branch Court 76, 176, 197, and 5 years of imprisonment and suspension of qualification against the deceased E on June 16, 197. After that, the appellate court (Seoul High Court 76No1290, Seoul High Court 76Do406) and the Seoul High Court 799, 197, 197, 207, 3.6.

2) In addition, the network E was indicted for violating Emergency Decree No. 9 on the facts stated in the separate sheet No. 2, and was sentenced to six years of imprisonment and six years of suspension of qualification on February 16, 1978 (hereinafter “the judgment on the second review”), and the appeal against it was dismissed on July 13, 1978 (No. 7818 of the Mine District Court Decision 7818). Meanwhile, the network E was detained on November 26, 1977 on the facts stated in the separate sheet No. 2 list and was released from the execution of the above final judgment on December 7, 1979.

(b) New judgment, etc.

1) Plaintiff D, a child of the network E, filed a request for a new trial against each of the above judgments. On June 5, 2013, Seoul High Court Decision 201JNo83 (hereinafter referred to as “the first new judgment”) and Gwangju District Court Decision 2011Mono 1 (hereinafter referred to as “the second new judgment”) decided on April 9, 2013, which decided on April 9, 2013, the Emergency Decree No. 9 infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for purposes without meeting the triggering requirements. B Before the Emergency Decree No. 9 was cancelled or invalidated, this is unconstitutional and void due to the violation of the new Constitution, and furthermore, it is also unconstitutional and invalid in light of the current Constitution that has the provision on the guarantee of fundamental rights infringed by Emergency Decree No. 9, each of the above facts charged in the original judgment constitutes a crime under the former part of Article 325 of the Criminal Procedure Act, and thus, acquitted each of E.

2) On August 22, 2013, the Plaintiffs filed a claim for criminal compensation based on each of the above judgments in the first instance trial (Seoul High Court 2013cc.46), and decided that the Plaintiff would pay KRW 31,104,00 for the Criminal Compensation case (Seoul High Court 2013cc. 46) on August 22, 2013, and that the Defendant would pay KRW 20,736,00 for the Plaintiff B, C, and D respectively, and that each of the above decisions was finalized at that time.

(c) Family relationship of the network E;

The deceased on September 6, 2009, and the heir of the deceased on September 6, 2009, there are Plaintiff B, C, and D, the wife of the deceased E.

[Ground of recognition] Facts without dispute, Gap's 1 to 5, and Gap's 8 (if there are provisional numbers, including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

A. Although it is difficult to see that domestic and foreign political situation and social situation at the time were a national emergency situation that must be dealt with with with with a tension, such as the exercise of emergency measures, the former president publicly announced long-term power and issued an emergency measure on May 13, 1975 to suppress people’s resistance against the physical system, and the emergency measure is unconstitutional that seriously infringes on citizens’ fundamental rights, such as the principle of no punishment without the law, warrant requirement, freedom of expression, etc. Accordingly, the act of issuing the said emergency measure by the former president constitutes an unlawful act of duties.

B. In addition, the network E was illegally arrested and detained without a warrant in the course of investigation and trial by an investigator affiliated with the Defendant, and was subject to cruel acts, such as tata and adviser, while blocking meeting and communication with defense counsel and his family members. Such harsh acts led to a confession that is not voluntary, and was convicted of having been convicted on the basis of such false confession.

However, since Emergency Measure No. 9 is a measure of unconstitutionality and invalidation, the act of judicial duties of a judge who has rendered a judgment of conviction by applying Emergency Measure No. 9 or Emergency Measure No. 9 to an investigation agency who arrested and detained the network E without a warrant to conduct an investigation and instituting a public prosecution.

(c) Even if the intention or negligence of individual officials on domestic affairs is not recognized, a series of acts such as the issuance of emergency measures, which are unconstitutional or unconstitutional, effective, and subsequent investigation and trial by the F President, constitute the Defendant’s tort.

D. Due to such unlawful acts, the deceased E was convicted of a conviction for a long time. Accordingly, the deceased E and the plaintiffs suffered from property damage or mental suffering, and thus the defendant is obligated to compensate the plaintiffs for each claim stated in the purport of compensation, which is the sum of the lost income and consolation money (including the inherited portion).

3. Determination

A. We first examine the argument that the presidential exercise of the emergency measure itself constitutes a tort under Article 2(1) of the State Compensation Act.

The Emergency Measure No. 9 infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the triggering requirements. Thus, prior to the cancellation or invalidation of Emergency Measure No. 9, this is unconstitutional and invalid as it is in violation of the U.S. Constitution, and further, it is unconstitutional and invalid in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Measure No. 9 (see, e.g., Supreme Court en banc Order 2011 initially and June 18, 2013).

However, even if Emergency Measure No. 9 was declared unconstitutional and invalid ex post by the court, the exercise of the presidential emergency measures based on the new constitution is a highly political act with high level of political nature, and the President, in principle, is not a political responsibility in relation to the exercise of the national emergency measures, and does not have a legal obligation in response to the individual rights of the people. Thus, such exercise of power by the President constitutes a tort under the civil law in relation to an individual citizen (see Supreme Court Decision 2012Da48824, Mar. 26, 2015).

Therefore, the plaintiffs' assertion that the act of the President issued an emergency measure No. 9 is an illegal act as stipulated in Article 2 (1) of the State Compensation Act, and the plaintiffs' liability for damages is not justified without further review on the remaining points.

B. As to the assertion of tort due to investigation and punishment under subparagraph 9 of the Emergency Measures Act

1) Relevant legal principles

In a case where a penal law becomes retroactively null and void due to a decision of unconstitutionality by the Constitutional Court or a court is declared unconstitutional or null and void, even if an investigation is initiated based on the relevant law before the law is declared unconstitutional and a public prosecution is declared guilty, such circumstance alone does not lead to the State’s liability for damages that constitutes a tort by a public official’s intentional or negligent act as referred to in Article 2(1) of the State Compensation Act.

The Emergency Decree No. 9 does not only lack the requirements of Article 53 of the New Constitution, which is the basis of its issuance, but also infringes on the fundamental rights of the people by seriously restricting the freedom of expression, warrant requirement and physical freedom, residence, right to petition, and academic freedom as stipulated in the current Constitution and the new Constitution, as well as the fundamental elements of democracy.

However, inasmuch as Article 53(4) of the former Constitution provides that "the emergency measures referred to in paragraphs (1) and (2) shall not be subject to judicial review," and Article 53(4) of the former Constitution was a valid Act that was not declared unconstitutional or invalid, it is difficult to view it as an act conducted in trust as an act conducted by a public official as constituting a tort by a public official's intentional or negligent act, unless the Emergency Measures No. 9 was declared unconstitutional or invalid.

On the other hand, if a public prosecution was filed based on the evidence collected by a State agency in the course of investigation and a final judgment of conviction was made, but the defendant's case in the latter part of Article 325 of the Criminal Procedure Act falls under "when there is no proof of criminal facts" and thus the judgment of innocence was finalized, the State's liability for damages caused by the

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 for the conviction of a violation of Emergency Decree No. 9, becomes final and conclusive on the ground that the unconstitutionality or invalidation of the Emergency Decree, barring any other special circumstance, it cannot be deemed that the State’s liability for damages arising from an illegal act committed by the State agency, which was in the course of the investigation, cannot be deemed immediately deemed as having been established solely on the ground that the judgment of innocence became final and conclusive, and the State’s liability for damages is difficult. In this case, the State’s liability for damages should be determined after separately examining whether there was a causal relationship between the State agency’s illegal act and the conviction during the investigation process, and accordingly determining whether to recognize the State’s liability for damages based on the unconstitutionality of Article 325 of the Criminal Procedure Act. Accordingly, comprehensively taking account of the contents of the crime charged, the existence of evidence, the grounds for the retrial decision, the circumstances and reasons for the acquittal.

The State’s liability for damages can be recognized against the conviction (see Supreme Court Decision 2013Da217962, Oct. 27, 2014).

2) Determination on the instant case

In light of the legal principles as seen earlier, the Defendant was arrested on suspicion that the deceased E violated Emergency Measure No. 9, without a warrant, and the Defendant was convicted of having been convicted of having been detained and convicted of the conviction. As seen earlier, the facts were examined.

However, even if an investigative agency arrested and confined the network E without a warrant pursuant to the Emergency Measure No. 9, which was in force at the time, and conducted an investigation, and instituted a public prosecution, or a judge declared a conviction by applying the Emergency Measure No. 9, as long as the Emergency Measure No. 9 at the time was not declared unconstitutional or invalid, it is difficult to view that such circumstance alone constitutes a tort committed by a public official intentionally or negligently

In addition, as seen earlier, the judgment of innocence under the former part of Article 325 of the Criminal Procedure Act with respect to the deceased E on the ground that Emergency Measure No. 9, which is the Act on Punishment applied to the deceased E in the review procedure for each of the instant judgments, was unconstitutional or invalid, cannot be deemed as a case where the judgment of conviction was rendered due to the illegal act of the State agency, which was committed during the investigation process, barring any special circumstances. Thus, the mere fact that the judgment of retrial became final and conclusive does not immediately constitute a State’s tort, nor can it be deemed that the State’s liability for damages was recognized on the ground that the damage caused by the illegal act of the State agency during the investigation process.

Furthermore, as to whether state agencies engaged in harsh conduct to the deceased E in the course of investigation

Domination, unless there is evidence to prove it.

Even if there was a State agency’s illegal act during the investigation process, such as the deceased E’s cruel act, it is separate from seeking compensation for damages caused by the cruel act itself, and in light of the following circumstances acknowledged by each of the above evidence, it is difficult to view that there was a high probability proof as to the existence of a cause of innocence under the latter part of Article 325 of the Criminal Procedure Act if there was no cause of innocence under the former part of Article 325 of the Emergency Decree, such as the unconstitutionality and invalidity of Emergency Decree No. 9, etc. As such, it is difficult for the State agency to recognize causation between the above illegal act and the instant conviction during the investigation process, and thus, it cannot be deemed that the damage caused by the homicide of the instant conviction was caused by the State agency’s illegal act. Accordingly, this part of the Plaintiffs’ assertion also does

① Article 420 Subparag. 5 of the Criminal Procedure Act provides that when clear evidence to acknowledge innocence is newly discovered with respect to a person who has been pronounced guilty, a retrial may be requested against the final judgment of conviction, and the penal law is in violation of the Constitution from the beginning of the original judgment and the court declares that the above judgment was unconstitutional and void (see, e.g., Supreme Court Order 2010Mo363, Apr. 18, 2013). Each of the instant judgments subject to retrial was determined as unconstitutional and void from the beginning by the en banc Order, etc., dated April 18, 2013, and Article 420 Subparag. 5 of the Criminal Procedure Act. This is merely on the ground that “The Emergency Measure No. 9 was determined as unconstitutional and void from the beginning, and this constitutes grounds for retrial under Article 420 Subparag. 5 of the Criminal Procedure Act. 7. It does not mean that investigators involved in an investigation, which was based on the grounds for retrial under Article 420 Subparag. 7 of the Criminal Procedure Act, have committed a crime

② The first trial ruling on the facts constituting a violation of the network E Emergency Decree No. 9 is based on the evidence of conviction of the deceased E’s partial statement, each legal testimony of witness G, etc., and the protocol of interrogation of a suspect’s suspect about the network E as evidence of guilt. The deceased did not deny the fact that he/she made a snow as stated in the facts charged, but only argued that “The facts charged are not specified because the facts alleged to be true are not indicated, and the contents of the deceased’s snow constitute, or distort, a will secret as stipulated in subparagraph 9 of the Emergency Decree.”

In addition, the judgment of the second review is based on the evidence of conviction such as the network E's statement on the criminal facts of the violation of the network E Emergency Decree No. 9, the statement of the suspect interrogation protocol on the network E prepared by the prosecutor, the statement of each protocol of statement on the prosecutor's investigation, the replacement of the prosecutor's preparation, and one seized recorded tape. The deceased did not deny the fact that he made a statement on the facts recorded in the facts charged. However, since all charged facts charged are nothing more than mentioning the true facts, it does not distort the facts, and it does not distort the facts, and the Defendant's religious act constitutes a justifiable act that cannot be restricted by guaranteeing the freedom of religion or that is included in the business of worship and drawing, which is a ordinary business as a pastor.

③ According to Emergency Measures No. 9, which had been enforced at the time, there was a ban on the acts of openly denying, opposing, slandering, or distorting facts, or disseminating, or distort facts by expressive materials such as documents, etc., the acts of making or spreading the words of will, or distort facts, or producing and distributing, etc., the acts of recording facts against the network E were in violation of Emergency Measures No. 9.

④ In addition, even if the network E was subject to suspicion from investigators as alleged by the Plaintiffs, it is difficult to view that the network E’s legal statement and the statement in the investigation agency were made continuously in the state of Voluntary hearing due to harsh acts, and there is no evidence to deem that each evidence seizure procedure was unlawful. Therefore, it cannot be readily concluded that each of the judgment subject to retrial was inadmissible as evidence of guilt.

C. As to the assertion that a series of acts, such as the issuance of emergency measures by the President and the subsequent investigation and trial, constitute tort

However, as seen earlier, it is difficult to view that the act of the President’s emergency measures, the act of the investigative agency against the network E, and the judicial act of the judge who declared a conviction constitutes a tort by a public official’s intentional or negligent act. Therefore, this part of the plaintiffs’ assertion is without merit.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

The presiding judge, the senior judge;

Rate of Judge higher

Judges Kim Gin-han

1) After reversal, the Seoul High Court (Seoul High Court 77-309) found only one of the facts charged in the separate sheet as guilty and rendered a judgment of conviction.

As to the above facts charged and the remaining facts charged as a blanket crime, it can be seen that the facts were distorted in the reasoning of the judgment.

Unless otherwise found guilty, it was not found guilty.