In a case where Gap was convicted of a false confession committed by committing a harsh act from an investigative agency and was released from the court after 15 years old elapsed since he was convicted by a mistake of evidence by an investigative agency, etc., and a judgment of not guilty became final and conclusive upon request for retrial, the case holding that the State is liable for the damages suffered by Gap and his family members.

In a case where Gap was convicted of false confessions committed by an investigative agency, such as forced seizure and adviser, and 15 years after being convicted of committing a cruel act from the investigative agency, and was released from the court after being convicted of the evidence committed by the investigative agency, and a judgment of not guilty was rendered after being tried to review the case holding that, on the ground that the State’s act committed by the public officials belonging to the State during the investigation process constitutes unconstitutional tort committed by having the appearance of performing its duty, which is an investigation into the suspect of the crime, the State is held liable for compensation for damages suffered by Gap and his family members due to the series of illegal acts as above under Article 2(1) of the State Compensation Act.

Article 2 (1) of the State Compensation Act

Plaintiff 1 and six others (Law Firm Young-soo, Attorneys Kim-type et al., Counsel for the plaintiff-appellant)

Korea

June 13, 2013

1. The defendant shall pay to plaintiffs 1 739,193,925 won, and 600,000,000 won to plaintiffs 3, 4, 5, and 600,000 won, respectively, and 250,000,000 won to plaintiffs 7, 298,33,3333 won, and each of the above amounts shall be paid 5% per annum from June 13, 2013 to July 15, 2013, and 20% per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 2,00,000,000,000,000 won to the plaintiff 3, 4, 5, and 6 respectively, and 916,66,67 won to the plaintiff 7, and 50,000 won per annum from October 7, 1972 to the date of the pronouncement of this case, and 5% per annum from the next day to the date of full payment.

1. Basic facts

(a) Investigations and indictment;

1) Around 20:50 on September 27, 1972, the case of rape and death (hereinafter “the crime of this case”) committed by the father of the police station affiliated with the Chuncheon Police Station (hereinafter “crime victim”) at the Yancheon-dong, Yancheon-si. Around 19:00 on September 27, 1972, the crime victim was presumed to have been raped between the cartoon shop and 19:30-21:00 on September 27, 1972. At the scene of the crime, the crime victim was presumed to have been raped between 19:30-21:00 on September 27, 1972. At the scene of the crime, there was a 000-TV cartoon among the Defendant’s Yancheon-dong, and the Minister of Home Affairs instructed the Defendant to arrest the offender by October 10, 1970.

2) On September 29, 1972, Plaintiff 1, who operated the △△ cartoon shop in Chuncheon-si, Sucheon-si, made a statement that “the crime victim had no fact that △△ cartoon had been on the day of the instant case.” The Plaintiff 1 reconvened to the police around October 7 of the same year, and forced the Defendant to make a statement about his criminal conduct from September 26 to September 28, 197, and make a confession of the instant crime. Five police officers belonging to the Chuncheon-si Police Agency did not provide Plaintiff 1 with her hair or her fry, and did not provide them with her clothes, she exceeded clothes, kneveed them into two arms, put them into good kne, and forced the Defendant 1 to make a confession of the instant crime, and forced the Defendant 1 to do knish the instant act.

3) From October 7, 1972, the police also conducted an investigation of Plaintiff 1’s neighboring figures from around October 7, 1972. Plaintiff 1’s children, Plaintiff 3 (at that time, nine years of age) presented by the police, and broom stated that Nonparty 1 was an employee of the △△ cartoon shop.

Non-party 1 was asked for witness in the police investigation, but the police first brooms presented by the police, but the police officer made a false statement that the above brooms were Plaintiff 1 to take the bath before Plaintiff 3 and to escape from the defect adviser. Although Non-party 1 made a statement that the police officer acknowledged all of the brooms as asked by the police, he was detained in brooms for six days until he testified in the procedure for preservation of evidence.

Plaintiff 1’s neighbor Nonparty 2: (a) stated that “The Plaintiff 1’s neighboring Nonparty 2: (b) Hasheddd the Plaintiff 1’s Hashed in the Kitch River on May 10, and was asked for the panty part; (c) was asked for the panty part; and (d) the Defendant’s panty part was asked at the police’s initial investigation.” (d) However, at the first investigation on Plaintiff 1, Nonparty 2 stated that the Defendant 1’s panty part was discovered at the above Plaintiff’s house; and (e) there was no panty part at the Plaintiff 1’s panty part. After Nonparty 2’s statement, the police seized Plaintiff 1’s panty part after Nonparty 2’s appraisal; and (e) attached the record.

In addition, the police investigated Plaintiff 1’s criminal records before and after the crime of this case, and led Nonparty 3, Nonparty 2, and Nonparty 4 to make a false statement.

4) On October 10 of the same year, Plaintiff 1 led to the confession of the instant crime while meeting with the prosecutor at the staff room of the Chuncheon Police Station. The police recorded the conversation between Plaintiff 1 and the prosecutor (the aforementioned secret recording was submitted as evidence in the subsequent trial process) and Plaintiff 1 announced the investigation result that Plaintiff 1 was the offender of the instant case. The police executed the warrant of detention against Plaintiff 1. The police requested the Chuncheon District Court for the preservation of evidence, and published the statements of Nonparty 1 and Nonparty 3, and the records of the instant crime by Plaintiff 1.

5) After being sent to the prosecution on October 19, 19 of the same year, Plaintiff 1 led to the confession of the instant crime at the time of interrogation, but Nonparty 1 made a false statement that brooms presented by the police were owned by Plaintiff 1, at the examination of the confrontations with Nonparty 1, and Plaintiff 1 also stated that “The confession was made by the police due to an adviser, and the reversal thereof would be subject to retaliation by the police, and thus, the prosecution also made a false confession.”

6) Although the Plaintiff 1 reversed his confession and denied the fact of the crime, he was prosecuted on November 7, 1972 with the Chuncheon District Court on charges of rape or murder.

(b) Trials;

1) During the trial process, Plaintiff 1 consistently complained of the following facts: (a) himself made a false confession due to the police’s harsh act; and (b) there was no charge of the instant crime. Nonparty 1 testified to the effect that “the police made a false statement to the effect that broom was the Plaintiff 1 by committing a harsh act; and (c) Plaintiff 3 also testified to the effect that “the police made the false statement to the effect that broom was the Plaintiff 1’s act of suspicion; and (d) Nonparty 3 testified that “the police

제1심 공판과정에서 이 사건 범행 현장에서 발견되었다는 연필이 증거물로 법정에 제시되었는데, 이는 길이 15.8cm의 하늘색 연필이었다. 원고 3은 ‘경찰 조사를 받을 때 경찰이 제시한 연필은 노랗고 짧은 연필이었는데, 경찰이 회유하여 허위로 내 것이라고 하였다’고 증언하였고, 이 사건 범행 현장을 처음 발견한 소외 5도 ‘현장에서 목격한 연필은 누런 빛깔이다’고 증언하였다. 한편 원고 1의 처 원고 2는 ‘경찰이 원고 3의 필통을 가지고 오라고 해서 가져간 일이 있다’고 증언하였다. 소외 1, 소외 5는 법정에서 증언을 하고 난 뒤 위증 혐의로 구속되었는데, 소외 5는 구속 상태에서 다시 법정에 출석하여 자신이 목격한 연필은 파란 것이라고 증언을 번복하였다.

After the above trial process, the Chuncheon District Court sentenced the Plaintiff 1 to imprisonment for life with respect to the crime of this case on March 30, 1973 (hereinafter “instant judgment subject to a retrial”) by applying the crime of rape to the Plaintiff 1 (the above court 72 high-level 131; hereinafter “instant judgment subject to a retrial”).

2) both prosecutors and Plaintiff 1 appealed against the above judgment. The Seoul High Court (73No627) that was the appellate court dismissed both appeals on August 9, 1973, and Plaintiff 1 appealed. However, the Supreme Court dismissed the appeal on November 27, 197, and the instant judgment subject to a retrial became final and conclusive by dismissing the appeal.

3) According to the above judgment, Plaintiff 1 was released from prison in Gwangju prison on December 24, 1987, while serving in prison.

C. The truth-finding decision of the past history Settlement Commission

As a result of the investigation of the instant crime upon Plaintiff 1’s request, the Korean History Settlement Commission conducted a truth-finding survey on November 20, 207, stating that “The police, in the course of the investigation of the instant crime, engaged in advisory and harsh acts against Plaintiff 1, and led to an unvoluntary confession by Plaintiff 1, but the prosecution and the court sentenced Plaintiff 1 to imprisonment for life and sentenced Plaintiff 1 to imprisonment for 15 years on the ground that it did not properly examine the illegality in the investigation of the instant crime, and thus, the prosecution and the court were responsible for restoring Plaintiff 1’s damage and reputation.”

(d) New judgment and criminal compensation;

1) On July 14, 2008, Plaintiff 1 filed a petition for a new trial with the Chuncheon District Court, and the above court rendered a decision of commencing a new trial on July 14, 2008. On November 28, 2008, the above court rendered a judgment not guilty of all the charges on the ground that the confession by Plaintiff 1 was highly likely to have been forced by means of considerable assault, intimidation, or cruel acts, and that the confession by Plaintiff 1 was not admissible due to lack of consistency in the contents of the statement made by Plaintiff 3, Nonparty 1, and Nonparty 2, or that it was made by force or disturbance of the police (the above court 2008 Inventory 1, hereinafter “instant new judgment”).

2) Although the prosecutor appealed on the instant new judgment, the Seoul High Court rendered a judgment dismissing the appeal on February 6, 2009 (the foregoing court 2008No3293), the prosecutor re-appealed, but the appeal was dismissed on October 27, 201 (Supreme Court 2009Do1603), and the above new judgment became final and conclusive as it is.

3) On May 8, 2012, Plaintiff 1 received criminal compensation order of KRW 960,249,600 at the Chuncheon District Court 201co169 by the new judgment of this case and received criminal compensation order of KRW 960,249,600 around that time.

E. The plaintiffs' relationship and inheritance relationship

1) The non-party 6 (Death on August 5, 1973), the non-party 7 (Death on January 26, 1992), the non-party 8 (Marriage on November 1, 1942), the non-party 9 (Marriage on March 2, 1948, Death on April 10, 1992), the plaintiff 7, the non-party 1, the non-party 10 (Defed on October 5, 1967) as his child.

2) On September 20, 1961, Plaintiff 1 married with Plaintiff 2, and formed Plaintiff 3, Plaintiff 4, Plaintiff 5, and Plaintiff 6 as their children.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1 through 12 (including each number; hereinafter the same shall apply), plaintiff 1's personal examination result, the purport of the whole pleadings

2. Occurrence of liability for damages;

(a) Illegal acts in the investigation process;

In full view of the above facts, the police officers belonging to the Chuncheon Police Station have received false confessions from Plaintiff 1 by committing harsh acts, such as lectures, seizures, advisers, briefings, and intimidation, and ② In the course of investigating the pen found at the scene of the instant crime, the first time presented a short pen of the yellow color discovered at the scene of the instant crime, which led Plaintiff 3 and Nonparty 5 to bring Plaintiff 3’s pentains, and operated evidence as if Plaintiff 3 had been discovered at the scene of the instant accident. ③ Non-Party 1 also forced the witness Non-Party 1 to make a false statement as Plaintiff 1’s personal belongings, ④ Non-Party 2’s strong seizure of Nonparty 2, and forced Plaintiff 1 to make a false statement when lapsing Plaintiff 1’s panty. Plaintiff 1’s panty operated panty, ⑤ Plaintiff 1’s request for appraisal, and made a false statement to the prosecutor and Plaintiff 1 to have the witness made a false confession based on the prosecutor’s interview and other evidence.

As above, since the act of the public officials belonging to the defendant, which was shown in the investigation process, constitutes unconstitutional tort committed by the state with the duty to protect the people, rather than by the perpetrator, having the appearance of the duty to investigate the suspect of the crime, and thus, the defendant is liable for all damages suffered by the plaintiffs 1 and their family members due to the series of illegal acts as above under Article 2 (1) of the State Compensation Act.

B. Whether the trial process constitutes a tort

In each instance of the instant judgment subject to a retrial, the Plaintiffs asserted that the court committed a tort against the principle of exclusion from confession by intentionally violating the principle of exclusion from confession.

In light of the above, even if a judge's fault did not comply with the provisions of the law, it is reasonable to interpret that the court's judicial duty is not an illegal act as referred to in Article 2 (1) of the State Compensation Act, thereby causing the State's liability for damages. For the State's liability to be recognized, there must be special circumstances to recognize that the judge has exercised it clearly in violation of the purport of the authority vested by the judge, such as where the judge held a trial with unlawful or unjust purposes, or where the law clearly violates the standards that require compliance with the judge's duty (see Supreme Court Decision 9Da24218 delivered on July 11, 2003).

As seen earlier, there is no evidence to acknowledge the special circumstances such as the court's failure to examine the instant case, even if there were sufficient circumstances to suspect that the confessions made in the investigation agency by the Plaintiff 1 was false confessions due to cruel acts, etc. during the trial process of the instant judgment subject to a retrial, and the fact that Plaintiff 1 asserted that the facts charged were denied during the trial process of the instant judgment subject to a retrial, and that there was a false confessions by the investigation agency. Accordingly, this part of the Plaintiffs' assertion that there was a tort during the trial process is without merit.

3. Scope of damages.

(a) Actual income:

(i) occupation and income;

Comprehensively taking account of the written evidence Nos. 2 and 14, the results of the Plaintiff 1’s personal examination, and the overall purport of the arguments, Plaintiff 1 may recognize the fact that he left the school of Korea on February 5, 1956 through December 12, 1957 and graduated from the school of Korea on March 1960. Accordingly, Plaintiff 1 could not obtain the previous income from January 1, 1973 sought by the above Plaintiff from January 1, 1973 to December 24, 1987, the release date. Accordingly, the Defendant is obligated to compensate for the lost income of Plaintiff 1. The daily income of Plaintiff 1 should be calculated on the monthly average salary of gender workers and workers engaged in religious orders from among the religious orders of Korea on February 5, 1956 to December 5, 1957 by the job classification published by the Ministry of Labor.

The plaintiff 1 sought compensation for lost losses from the date of release until the date of operation. However, according to the aforementioned evidence, the plaintiff 1 prepared to become a pastor for three to four years after his release and continued to work as a pastor on September 27, 191. Thus, it is difficult to view that the plaintiff 1 continued to lose the statistical income even after his release, and there is no other evidence to support this, the plaintiff 1's assertion on this part is rejected.

(ii)Calculation;

When based on the employment status survey report by job type published by the Ministry of Labor, the monthly average wage of religious related workers from January 1, 1973 to December 24, 1987 can be recognized as the same fact as the entry in the “monthly average wage” column in the attached table of damages calculation. If the above amount is calculated at the present price as of October 7, 1972 where Plaintiff 1 was committed by the discount method, it shall be KRW 45,123,574, such as the sum entry in the “daily income” column in the attached table of damages calculation.

(b) consolation money;

1) Criteria for calculating consolation money

In calculating consolation money that the Defendant is liable to compensate for to the Plaintiffs, the following circumstances known in light of the facts acknowledged earlier shall be considered:

① The instant case is not a general tort committed by public officials belonging to the Defendant in the course of ordinary performance of official duties, but a special tort committed by the Defendants’ public officials’ act of systematically infringing Plaintiff 1’s universal freedom and fundamental human rights, such as the right not to be compelled to make a statement unfavorable to himself/herself, in spite of their duty to protect the fundamental human rights of the people, thereby guaranteeing the dignity and value of each individual’s human being. It is not a special tort committed by the rule of law.

② Plaintiff 1’s peaceful daily life led to extreme physical pain while committing adviser and cruel acts, and was found to have been suffering from extreme mental fear and pressure. The Plaintiff 1 was involved in the police on the ground that he was a person who was in prison and was released from prison life until the judgment of innocence became final and conclusive on the ground that he was a person who was not guilty. In addition, Plaintiff 1 was faced with social cooling, social position disadvantage, and economic poverty for a period of 40 years and his family members had to keep his family members suffering from the same pain as that of a person who was scambling and scambling.

③ 원고 1의 가족인 나머지 원고들은 원고 1이 억울한 누명을 쓰고 갑자기 연행된 후 재판을 거쳐 유죄 확정판결을 받는 과정을 충격과 공포로 지켜보았고, 특히 원고 1의 아버지 소외 망 6은 원고 1이 구금된 지 채 1년도 못 되어 충격으로 사망하였다. 그 밖에도 위 나머지 원고들은 흉악범의 가족이라는 주위 사람들의 차가운 시선 속에 살던 동네를 떠나 뿔뿔이 흩어져야만 했으며, 그 후로도 자신과 가족들에 대하여 계속되는 사회적 냉대와 경제적 어려움 속에서 감내하기 힘든 고통과 불안을 겪어야 했다.

④ As seen later, there are exceptional circumstances where damages for delay of the compensation obligation should arise from the date of the closing of argument, and thus, there is a reason to delay compensation for a long period of time.

2) Amount of consolation money

In light of all the circumstances revealed in the arguments of this case, such as the contents and degree of the tort of this case, the degree of illegality, the occupation, career, and severity of sentence before the plaintiff 1's chain of conduct, the period of time up to the date of the tort of this case, the plaintiffs' age and family relationship, growth environment and property status, and the situation after the plaintiff 1 was released, etc., the consolation money of the plaintiff 1 shall be KRW 1.4 billion; the consolation money of the plaintiff 2, the spouse of this case, KRW 60 million; the consolation money of the non-party 6, the non-party 7, the non-party 3, the non-party 4, the plaintiff 4, the plaintiff 5, and the plaintiff 6, their parents and children, KRW 250 million; and the consolation money of the plaintiff 7 and the non-party 9 shall be determined at KRW 100 million each, respectively.

(iii) inheritance relations;

As Nonparty 6 died on August 5, 1973, his consolation money was inherited by Nonparty 7’s wife Nonparty 2/15, Nonparty 8, Nonparty 9, and Nonparty 10, each of whom was his wife Nonparty 1/15, Plaintiff 4/15, and Plaintiff 7, each of whom was his wife Nonparty 7’s heir, pursuant to the former Civil Act (amended by Act No. 3051 of Dec. 31, 1977). Thereafter, Nonparty 7 succeeded to the 6/15 shares of Nonparty 7’s consolation money and Nonparty 6’s consolation money inherited by Nonparty 8, Nonparty 9, Nonparty 10, Plaintiff 7, and Nonparty 1/5. Nonparty 9’s inheritance on Apr. 10, 199, Nonparty 1 and Nonparty 7’s share of consolation money were inherited by Nonparty 7, Nonparty 7’s deceased on January 26, 192, Nonparty 7 and Nonparty 7’s deceased Nonparty 1/5.

Plaintiff 1’s 31/100 of consolation money (=4/15 of the inheritance portion of Nonparty 7 + 2/15 of the inheritance portion of Nonparty 7 + 1/15 of the inheritance portion of Nonparty 9 + 1/15 of the inheritance portion of Nonparty 1/4), Nonparty 7’s 1/4 shares (=1/5 of the inheritance portion of Nonparty 9 + 1/5 of the inheritance portion of Nonparty 9 x 1/4) and Nonparty 9’s 165,000,000 won (= 250,000 + 31/100 + 250,000 + 100,000 + 1.45 billion won x 1/400,000 x 1/400) of the inheritance network + 1305/1500 of the inheritance network of Nonparty 7.

4) Determination on the initial date of the damages for delay

The Plaintiffs seek for the payment of damages for delay from October 7, 1972, when Plaintiff 1 was involved in the police. However, if the national income level at the time of the conclusion of arguments, which is the basis for the calculation of damages for delay, and the circumstances such as the monetary value, etc., are significantly changed compared to the time of the tort, and it is also inevitable to take into account the amount of damages for delay, which reflects the amount of damages for delay, the damages for delay of the damages for delay of the damages for tort, exceptionally, shall be deemed to have occurred from the date of the conclusion of arguments at the time of the calculation of damages for delay (see Supreme Court Decision 2009Da103950, Jan. 13, 201, etc

On the premise of the foregoing legal doctrine, as seen earlier, there was a considerable change in the price and national income level between Plaintiff 1 and the police from October 7, 1972 to June 15, 2013, when 40 years have elapsed since the date of the closure of the argument in this case, compared with the time of tort in the monetary value at the time of the closing of argument. Such change has also been considered in determining the amount of consolation money based on the time of the closing of argument in this case. As such, the Defendant is obliged to pay compensation for delay only for the period after the date of the closing of argument in this case.

(c) Mutual aid for criminal compensation;

1) Article 6(1) of the Criminal Compensation and Restoration of Honor Act provides that “this Act shall not prohibit a person entitled to compensation from claiming compensation under other Acts.” Article 6(3) of the same 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 subtracting the amount of compensation therefor.” However, a person who has been detained or sentenced to punishment in criminal proceedings may receive compensation by proving a cause attributable to a public official, and without proving a public official’s cause attributable to him/her, he/she may receive compensation in a simple and speedy manner through receiving criminal compensation without proving the cause attributable to the public official. In light of the purport of the Criminal Compensation Act, in calculating the amount of compensation for damages, the aforementioned criminal compensation should not be put at a disadvantage to the person who first received the criminal compensation, or both the compensation and the criminal compensation share the same function as a means of compensation for the same damage, it shall be appropriate to deduct the amount of compensation first received under the relevant provisions in the process of calculating the amount of compensation for damages by referring to Supreme Court Decision 101314.

2) In light of the aforementioned legal principles, the amount of the compensation received by Plaintiff 1 should be appropriated for the consolation money remaining after the payment of the damages for delay from actual income and damages for delay in order of the original amount of the damages for delay, whichever is earlier, out of the amount of damages for delay, and the amount of the damages for delay. The amount of damages that Plaintiff 1 received as of May 8, 2012, as of 45,123,574 won, and its amount of damages for delay from October 7, 1972 to May 8, 2012, shall be 89,319,951 won [45,123,574 won x 5000 won x 134,4500 won x 3650 million won x 36505 billion won x 3605 billion won, 305 billion won, 305 billion won, 450 billion won, 505 billion won, 1945.

D. Sub-committee

Therefore, the Defendant is obligated to pay to Plaintiff 1 KRW 600,00,000 to Plaintiff 3, Plaintiff 4, Plaintiff 5, and Plaintiff 6 respectively, KRW 250,000,000,000,000 to Plaintiff 7 and KRW 298,333,3333 for each of the above amounts (i.e., KRW 100,000 + KRW 198,333,333) as to the existence or scope of the Defendant’s obligation from June 13, 2013 to July 15, 2013, which is the date of the final argument of this case, and to pay damages for delay at the rate of KRW 20,00 per annum as stipulated in the Civil Act until July 15, 2013, which is the date of the final argument of this case.

4. Conclusion

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

[Attachment] Calculation Table of Damages: Omitted

Judges Park Jong-su (Presiding Judge)