A. Where a judgment rendered a sentence of life imprisonment and limited imprisonment, the case holding that it is attributable to negligence that a prosecutor instructs the change of order of execution of punishment so that the punishment can be executed first prior to the imprisonment for life.

B. Whether the criteria for compensation under the Criminal Compensation Act should be applied in calculating the amount of damage under the State Compensation Act

A. In a case where the sentence of imprisonment for life and imprisonment for a limited term of five years is sentenced by a judgment in accordance with Article 39(1) of the Criminal Act, since the fixed term type of imprisonment is absorption into the life imprisonment type pursuant to Articles 39(2) and 38(1)1 of the Criminal Act, it is apparent in the legal text of the above provision that the fixed term type of imprisonment cannot be executed, and that only the life imprisonment should be executed, and therefore, it cannot be said that the prosecutor ordered the change of the order of execution of the punishment to be executed first prior to the execution of the life imprisonment is not due to negligence.

B. The grounds for the damages under the State Compensation Act and the criminal compensation under the Criminal Compensation Act are different from those under the State Compensation Act, so it cannot be viewed that the criteria for compensation under the State Compensation Act should be applied in calculating the amount of damages under the State Compensation Act.

(a)Article 2(1) of the State Compensation Act and Article 38(1)1(a) of the Criminal Act; Articles 39(1) and 39(2) of the Criminal Act;

A. Supreme Court Decision 72Da2583 delivered on October 10, 1973 (Gong1973,7539) 80Da1598 delivered on August 25, 1981 (Gong1981, 14293)

Plaintiff

Korea

Seoul High Court Decision 92Na61531 delivered on May 4, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by Defendant Litigation Performers are examined.

1. Judgment on the first ground for appeal

In the event that the interpretation of the statutes is complicated and unsatisfying, it is difficult for a public official to find a reasonable ground due to his or her prudence, and the Supreme Court's interpretation that took one of them is not the same as that of a public official in the event that the interpretation of the statutes is complicated, unsatisfying, and it is difficult for the public official to expect that he or she would faithfully incur an unfair enforcement of the statutes. In this case, even if the process is illegal, it is difficult to expect that he or she would faithfully incur an unfair enforcement of the statutes, and there is no legal ground for imposing liability (see Supreme Court Decision 72Da2583, Oct. 10, 1973; Supreme Court Decision 80Da1598, Aug. 25, 1981).

However, in the case of this case, where the sentence of imprisonment for life and imprisonment for a limited term of five years is sentenced by a single judgment pursuant to Article 39(1) of the Criminal Act, it is clear that the sentence of imprisonment for life cannot be executed and only imprisonment for life should be executed, since the imprisonment for life is absorption into imprisonment for life pursuant to Articles 39(2) and 38(1)1 of the Criminal Act. Therefore, it cannot be said that the change of the order of execution of imprisonment for life is due to negligence in breach of the duty of care if the prosecutor instructs the execution of the sentence first prior to the imprisonment for life.

In addition, even if the above imprisonment for life was reduced to twenty (20) years after the death penalty, there is no room to regard that the above imprisonment for life was sentenced to a new sentence under Article 39(2) of the Criminal Act. Thus, there is no legal basis or theory that can not be seen as being combined with the above imprisonment for life, and there is no legal basis or theory that can be seen as such. Therefore, it is difficult to say that the interpretation of the above provisions of the Criminal Act is complicated, it is difficult to find that the above provisions of the Criminal Act is difficult to lack, and that there is no intention due to the lack of theories and precedents, and there is no special reason to interpret that if the prosecutor sentenced to imprisonment for life to a limited term after the reduction of the imprisonment for life, the sentence that could not be executed before the reduction of the imprisonment for life can be newly executed.

In addition, according to the reasoning of the judgment of the court of first instance as cited by the court below, it is true that the court of first instance decided to revoke the total sum of five-year imprisonment among the execution disposition by the prosecutor to the effect that the imprisonment for life cannot be executed for 20 years even if the imprisonment for life was reduced to 20 years, which was before the expiration of the above imprisonment for life was sentenced to imprisonment for 20 years, and that the imprisonment for 20 years, which was sentenced to imprisonment for the above execution, cannot be executed newly, among the above execution disposition by the Seoul High Court on July 25, 191.

2. Judgment on the second ground for appeal

Inasmuch as the State Compensation Act and the Criminal Compensation Act are different from those of the State Compensation Act, it cannot be said that the criteria for compensation under the State Compensation Act should be applied to the calculation of the amount of compensation under the State Compensation Act.

In addition, in this case, since the prosecutor's illegal execution disposition of punishment claims consolation money, it cannot be said that the consolation money should be calculated on the basis of urban daily wages for the period of not unfairly released. The amount of consolation money for mental suffering caused by the illegal act such as this case can be determined by the fact-finding court at its own discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 87Meu57, Feb. 23, 1988). In light of the records, the judgment of the court below that the consolation money cited by the court of first instance is justifiable is acceptable, and there is no error of law such as the theory of lawsuit. The argument is without merit.

3. Therefore, the appeal is dismissed 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 Yoon Young-young (Presiding Justice)