Whether a decision made by the Constitutional Court on August 30, 2018 that “the part concerning mental harm caused by a tort among the damage incurred in relation to a democratization movement under Article 18(2) of the former Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movements is unconstitutional” has binding force on the court (affirmative); and whether the circumstances for which a decision of unconstitutionality was rendered prior to the said decision becomes a ground for retrial under Article 75(7) of the Constitutional Court Act as to the judgment already finalized in the pertinent litigation that became the premise for the constitutional complaint prior to the said decision (affirmative)

Article 75 (7) of the Constitutional Court Act provides that where a constitutional complaint under Article 68 (2) of the same Act is accepted, if a litigation case related to the relevant constitutional complaint becomes final and conclusive, the parties may request a review.

Article 18(2) of the former Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movements (amended by Act No. 13289, May 18, 2015; hereinafter “former Democratization Compensation Act”) provides that “If an applicant has consented to the determination of compensation, etc. under this Act, the determination of payment of compensation, etc. under this Act shall be deemed to have been made by judicial compromise under the Civil Procedure Act for the damage suffered in relation to Democratization Movement.”

The Constitutional Court made a decision on August 30, 2018 that the part concerning mental damage caused by a tort among the "damage inflicted in relation to democratization movements" under Article 18 (2) of the former Democratization Compensation Act is unconstitutional (hereinafter referred to as "decision of partial unconstitutionality") and the Constitutional Court made a decision on August 30, 2018 that the part concerning mental damage caused by a tort is unconstitutional.

As above, a partial decision of unconstitutionality is a decision that has the same effect as the abolition of part of Article 18(2) of the former Democratization Compensation Act by declaring that the part of the "damage caused by a tort", which is a part of the "damage caused by a democratization movement, is unconstitutional and thus has the binding force on the court.

Before a partial decision of unconstitutionality is rendered, the circumstances in which part of the judgment that became final and conclusive in the relevant litigation case, which became the premise of the constitutional complaint, are grounds for retrial under Article 75(7) of the Constitutional Court Act.

Articles 68(2) and 75(7) of the Constitutional Court Act; Article 18(2) of the former Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movements (Amended by Act No. 13289, May 18, 2015)

Constitutional Court en banc Decision 2014Hun-Ba180, 304, 305, 2015Hun-Ba133, 283, 284, 357, 434, 435, 436, 437, 441, 442, 2016Hun-Ba23, 49, 64, 67, 67, 73, 98, 165, 215, 244, 308, 375, 375, 393, 2017Hun-Ba251, 281, 374, 395, 468, 2018Hun-Ba94, 157, 2014; 10, 2018Hun-Ba236, 205, 2015

Plaintiff (Re-Appellant) 1 and 2 others (Law Firm Shin, Attorneys Kim-type et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Lee Jae-type et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2018Na20286 decided June 13, 2019

All appeals are dismissed. The costs of appeal are assessed against Defendant (Re-Defendant).

The grounds of appeal are examined.

1. Article 75(7) of the Constitutional Court Act provides that where a constitutional complaint under Article 68(2) of the same Act is accepted, if the litigation case related to the relevant constitutional complaint becomes final and conclusive, the parties concerned may request a retrial;

Article 18(2) of the former Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movements (amended by Act No. 13289, May 18, 2015; hereinafter “former Democratization Compensation Act”) provides that “If an applicant consents to the determination of the payment of compensation, etc. under this Act, the determination of the payment of compensation, etc. under this Act shall be deemed to have been made by judicial compromise under the Civil Procedure Act for the damage incurred in relation to Democratization Movement.”

The Constitutional Court ruled on August 30, 2018 that the part concerning mental damage caused by a tort among the “damage incurred in relation to democratization movements” under Article 18(2) of the former Democratization Compensation Act is unconstitutional (see, e.g., Constitutional Court en banc Order 2014HunBa180, Aug. 30, 2018; hereinafter “decision on partial unconstitutionality of a case”) is unconstitutional.

The decision of partial unconstitutionality of the instant case is a decision that has the same effect as the abolition of part of Article 18(2) of the former Democratization Compensation Act by declaring that the part of the “damage caused by a tort”, which is a part of the “damage inflicted in relation to a democratization movement, is unconstitutional and thus becomes binding upon the court.

The circumstances in which the decision of partial unconstitutionality of the instant case was rendered prior to the pronouncement of a decision of partial unconstitutionality of the instant constitutional complaint are grounds for retrial under Article 75(7) of the Constitutional Court Act.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed.

On July 12, 2012, the Nonparty (the Nonparty died after the pronouncement of the instant judgment subject to a retrial) and the Plaintiff (the Plaintiff, hereinafter “Plaintiff”) 3 asserted that public officials belonging to the Defendant’s affiliated organizations have committed a series of illegal acts related to the so-called “Public University Case,” and that themselves and their family members suffered emotional distress, and filed the instant lawsuit claiming consolation money against the Defendant (the Defendant; hereinafter “Defendant”).

On November 8, 2013, the Seoul Central District Court sentenced the judgment of the first instance that partly admitted the consolation money and the part corresponding to the share of the family of the non-party and the non-party 3's claim, and the plaintiff 3 and the defendant filed an appeal as to the part against the judgment of the first instance.

On May 3, 2016, Seoul High Court recognized that the Nonparty and Plaintiff 3 applied for the payment of compensation or living allowances under the former Democratization Compensation Act as a person related to democratization movements and consented to the decision of payment thereof and received living allowances, etc. In addition, the Nonparty and Plaintiff 3’s claim of consolation money were constituted a judicial compromise pursuant to Article 18(2) of the former Democratization Compensation Act, and thus, the Seoul High Court rendered the instant judgment subject to a retrial that dismissed the claim of consolation money on the ground that there is no benefit of protection of rights. The instant judgment subject to a retrial became final and conclusive on August 17, 2016.

During the above appellate trial, the Nonparty and Plaintiff 3 filed an application with the Seoul High Court for adjudication on constitutionality of Article 18(2) of the former Democratization Compensation Act, and upon dismissal of the application, on June 2, 2016, filed a petition with the Constitutional Court for adjudication on constitutional complaint (2016HunBa215) under Article 68(2) of the Constitutional Court Act.

The Constitutional Court rendered a decision on partial unconstitutionality of the instant case on August 30, 2018, after examining the constitutional complaint filed by Nonparty and Plaintiff 3 together with the relevant case.

3. On the following grounds, the lower court determined that there were grounds for retrial under Article 75(7) of the Constitutional Court Act in the instant judgment subject to a retrial.

In a lawsuit of the appellate court that became the premise of the above constitutional complaint filed by the Nonparty and Plaintiff 3, the judgment subject to a retrial that dismissed the Nonparty and Plaintiff 3’s claim for consolation money for emotional distress by applying the part that lost its validity as a decision of unconstitutionality under Article 18(2) of the former Democratization Compensation Act, which became final and conclusive. Therefore, the instant judgment subject to a retrial was a litigation that constituted the premise of the above constitutional complaint, and there are grounds for retrial under Article 75(7) of the Constitutional Court Act.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the grounds for retrial under Article 75(7) of the Constitutional Court

4. The Defendant’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)