In a case where an appellant was arrested and detained without a warrant and the execution of a sentence of imprisonment and a protective disposition for security was terminated after having been sentenced to a final judgment of conviction due to a violation of the National Security Act, etc., but a criminal compensation claim for the execution of protective disposition is filed after the judgment of innocence was final and conclusive

In a case where a claimant was arrested and detained without a warrant and the execution of a sentence of imprisonment and a protective custody disposition for committing a violation of the National Security Act, violation of the anti-public law, or espionage was terminated, and the judgment of innocence was finalized after the judgment of innocence became final and conclusive, a claim for criminal compensation for the execution of a protective custody disposition is filed, the case holding that it is difficult to recognize that the court can not seek criminal compensation even for the execution of a protective custody disposition by examining the legislative intent of the relevant Acts and subordinate statutes, such as the Constitution and the Act on Criminal Compensation and Restoration of Honor Act (wholly amended by Act No. 4132, Jun. 16, 1989) and the former Social Security Act (repealed by Act No. 7656, Aug. 4, 2005), and there are various legal differences in nature, such as the subject, form, and procedure of protest against the disposition of protective custody, which differs from the function of the court and can not be applied mutatis mutandis to the execution of the protective custody.

Article 28 of the Constitution, Articles 1, 2(1) and (2), 4, 5(1) and (2), 27, and 28(1) of the Act on Criminal Compensation and Restoration of Honor, Article 98(1) of the Criminal Act, Article 4(1) (see current Article 7(1) of the National Security Act, Article 8(1) (see current Article 6(2) of the National Security Act), Article 6(4) (see current Article 6(2) of the National Security Act), Article 2(2) of the former National Security Act (wholly amended by Act No. 3318, Dec. 31, 1980); Article 5(2) of the former Act on Criminal Compensation and Restoration of Honor; Article 5(2) of the same Act (see current Article 7(2) of the National Security Act); Article 2(4) of the former Security Act (wholly amended by Act No. 3318, Dec. 31, 1980); Article 5(2) of the National Security Act

Claimant

Law Firm Sang-ok et al.

Seoul High Court Decision 201Reno74 decided March 28, 2014

Criminal compensation for detention of an appellant shall be 387,800,000 won and 10,400,000 won shall be paid as compensation for expenses.

1. Facts of recognition;

A. On October 26, 1975, the claimant was detained by a detention warrant on November 1, 1975 on the ground that the investigator of the Central Information Department was illegally arrested without a warrant on November 1, 1975.

B. On December 10, 1975, the claimant was indicted as a violation of the National Security Act, a violation of the public law, or a counter-espionage (the Seoul Criminal Court 75 senior 988, 993 (merged)). The above court found the defendant guilty of all the facts charged on April 30, 1976, and sentenced the defendant to seven years of imprisonment, suspension of qualification, seven years of imprisonment, and forfeiture (Evidence 2) by applying Article 2 of the National Security Act, Article 98(1) of the Criminal Act, Article 5(2) of the National Security Act, Article 4(1), 5(1), and 6(4) of the Anti-Public Law.

C. On August 31, 1976, the claimant and the prosecutor filed an appeal with Seoul High Court No. 76No1178, and this court rejected the claimant’s mistake of facts and the prosecutor’s assertion of unfair sentencing, rejected the claimant’s assertion of unfair sentencing, and reversed the judgment below and sentenced the claimant’s imprisonment with prison labor for five years, suspension of qualifications for five years, and forfeiture (No. 2).

D. Although the claimant filed an appeal against the above judgment with the Supreme Court Decision 76Do3097, the Supreme Court dismissed the appellant’s appeal on December 14, 1976 and the above judgment became final and conclusive as is. Accordingly, the claimant terminated the term of punishment on February 14, 1981 while serving in the above final and conclusive judgment.

E. Upon expiration of the term of punishment, the claimant is deemed to be subject to security measures under Article 2 of the former Social Security Act (wholly amended by Act No. 4132, Jun. 16, 1989; hereinafter the same) and is deemed to be “a person who has a significant risk of committing multiple crimes” under Article 6(1)1 of the former Social Security Act, and the applicant’s execution of security measures by the Minister of Justice on January 29, 1981 following deliberation and resolution by the Security Measures Deliberation Committee was commenced on February 14, 1981 immediately after the expiration of the term of punishment. On January 13, 1983, the period of security measures was renewed three times in total, such as receiving a decision to renew the period of security measures. Ultimately, the applicant’s security measures terminated on June 10, 198 and the security measures terminated.

F. In the process, the claimant filed an administrative lawsuit against the Minister of Justice on January 13, 1983 regarding the decision to renew the period of the protective disposition (hereinafter referred to as "the first renewal decision"), but the claim was dismissed on October 7, 1983 (hereinafter referred to as "the court below's judgment"). (2) The claimant filed an appeal against it on March 13, 1984 (Supreme Court Decision 83Nu615) and remanded the case to the Seoul High Court on March 13, 1984 (3) thereafter, the first reversed trial (Seoul High Court 84No299) accepted the claimant's claim to nullify the invalidation (hereinafter referred to as "the court below's judgment") on December 20, 1984. However, the claimant re-appealed the judgment of the court below to the Seoul High Court on December 28, 1985 (hereinafter referred to as "the second appellate court's appeal") and the second appeal was reversed by the Minister of Justice on March 28, 298198.

G. On April 28, 201, the claimant filed a petition for review with this court on September 25, 201, and received a decision of commencing a retrial on September 25, 2012. On March 28, 2014, the judgment of innocence was rendered by this court as the court 201No74, and the prosecutor appealed to the Supreme Court 2014Do4253, but the said judgment became final and conclusive on September 26, 2014.

H. Meanwhile, the claimant appointed the law firm ○○ (Attorney in charge) and four weeks, respectively, as the first instance court, the appellate court, and the appellate court, the defense counsel for the appeal of the retrial case, and the defense counsel for the appeal of the retrial case and the appellate court. The aforementioned defense counsel took charge of the defense for the claimant in the corresponding instance.

2. Determination

A. Part of criminal compensation claim

1) As to the claim for compensation for detention

A) According to the above facts, the claimant was rendered not guilty as a case for reexamination and the judgment became final and conclusive, and there is no ground falling under any of the subparagraphs of Article 4 of the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”), and the claimant is entitled to claim compensation for detention for 939 days from October 26, 1975 to February 14, 1981 by the claimant under Article 2 of the Criminal Compensation Act.

B) In light of all the circumstances stipulated in each subparagraph of Article 5(2) of the Criminal Compensation Act, such as the type and length of detention, loss of the claimant’s property during the period of detention, loss of profits which could have been gained, mental suffering, and physical injury, etc., the compensation for the claimant’s detention shall be 20,000 won per day (20,000 won per day (20,000 won per day, 41,680 won per day, the minimum daily wage under the Minimum Wage Act of 2014, where the cause for the claim for compensation occurred) adjacent to the maximum amount stipulated in the above Act and subordinate statutes for the whole number of days of detention (20,000 won per day, 200,000 won per day). Therefore, the claimant’s criminal compensation for detention shall be 387,80,000 won (200,000 won x 1,939 days).

2) As to the claim for compensation for the execution of security custody

A) According to the above facts, the claimant may be found to have been detained for 2,674 days as an execution of the security custody measure from February 14, 1981 to June 10, 198, in addition to the period of detention. However, the case of detention may be applied mutatis mutandis to the execution of the security custody measure by analogy, and the following is examined.

B) There is no clear precedent as to the execution of protective custody disposition. However, there is a precedent regarding criminal compensation for the execution of protective custody disposition on the ground that the execution of protective custody disposition does not differ from the actual detention (see Supreme Court Order 2004Da1 (2004No. 6, Oct. 18, 2004). However, even so, even if the execution of protective custody disposition like this case cannot be applied to the execution of protective custody disposition, the above legal principle recognizing criminal compensation for the execution of protective custody disposition as in this case cannot be applied mutatis mutandis, and it is reasonable to view that criminal compensation can not be claimed in the end because the legal principle recognizing criminal compensation for detention cannot be applied by analogy, and the reasons are as follows.

(1) Article 1 of the Criminal Compensation Act provides that "this Act shall provide for the methods, procedures, etc. for criminal compensation and restoration of honor to a person who has been acquitted, etc. in the Criminal Procedure Act," and Article 2 (2) of the same Act provides that "where a defendant in a case finalized by a judgment of not guilty in an appeal, retrial, or extraordinary appeal procedure due to the recovery of his/her right to appeal has been detained or has been sentenced to execution of a sentence by "original judgment," he/she may claim compensation for detention or execution of a sentence." Accordingly, the Criminal Compensation Act appears to the purport that the State shall provide fair compensation for damage caused by the detention or other similar confinement by a judgment in a criminal trial procedure, regardless of the public official's intentional or negligent act (see Supreme Court Order 2004Da10401, Oct. 18, 2004).

(2) However, the legal nature of protective custody under the former Social Security Act and the former Social Protection Act (repealed by Act No. 7656, Aug. 4, 2005; hereinafter the same) is similar to the so-called separate protective custody disposition. On the other hand, there are differences in the legal nature of protective custody disposition and protective custody disposition as follows. In other words, regarding the subject of protective custody disposition in question, the function of the Ministry of Justice is different; on the other hand, in the case of protective custody disposition, the court is in the case of protective custody disposition, while in the case of protective custody disposition, the court is in the case of protective custody disposition, and the authority of the Ministry of Justice is in the case of protective custody disposition, while in the case of protective custody disposition, the court is in the case of protective custody disposition, and there is no room for an administrative agency to determine whether the protective custody disposition is subject to review or resolution prior to the execution of protective custody disposition. In particular, if the protective custody disposition is subject to review or resolution by the court’s order.

(3) When a final judgment has become final and conclusive, the judgment subject to a retrial shall naturally lose its effect, but the execution of a sentence, which was made according to the judgment subject to a retrial until then, shall not lose its effect (see Supreme Court Decision 91JDo58 delivered on July 26, 191). Likewise, even in the case of execution of a security custody disposition, even if a criminal judgment, which served as the basis of the disposition, was judged not guilty through a retrial and lost its effect, the execution of the security custody disposition shall be deemed lawful and shall not lose its effect, and thus, it shall not be deemed that the execution of the security custody disposition shall not become null and void, contrary to the claimant’s assertion.

(4) As seen earlier, even though several instances of administrative litigation have been conducted on the first renewal decision, the applicant’s second renewal decision was dismissed, and at least the first renewal decision of the third judgment against which a request for confirmation of invalidity was dismissed was made, the third judgment became final and conclusive as to the legitimacy and validity of the first renewal decision, and thus, there has been a final and conclusive judgment of the Supreme Court even on the legitimacy and validity of the second renewal decision. Therefore, as asserted by the claimant, in order to first examine the theory on the legitimacy and validity of the first renewal decision of the court below as to the third judgment which became final and conclusive based on a judgment of innocence in criminal procedure, a separate administrative litigation is filed against the third judgment of the court below which became final and conclusive based on a judgment of innocence in criminal procedure, and then the third judgment of the court below becomes null and void due to the acceptance of a request for a new trial on the grounds that the security reduction measure against the claimant becomes null and void as a matter of course, and there is no evidence to deem that the third judgment of the court below was invalidated due to the acceptance of the request for a new trial on the third judgment.

(5) In the past, Article 24 of the Constitution recognizes the right to claim criminal compensation as a fundamental right, and the current Constitution expands the scope of recognition of the right to claim criminal compensation under Article 28 to the “criminal suspect” who has been detained. In addition, the Criminal Compensation Act has been amended in seven times since its enactment in 1958, and it has been completely amended in 2011. Article 2 of the same Act provides that “unconvicted (Article 15)” and “execution (Article 16) of detention or punishment (Article 2)” (Article 27 of the same Act shall be subject to compensation, and the compensation for detention of a suspect shall be separately recognized under Article 27 of the same Act, but the compensation for such detention shall be limited to the District Public Prosecutor’s Office (Article 28(1) of the same Act, in which case the branch office thereof belongs)’s legislative history of the Constitution and the Criminal Compensation Act, or the legislative purport of the Criminal Compensation Act, such as the provision of the Criminal Compensation Act, shall be limited to the scope of the Criminal Compensation Act.

C) If so, the claimant’s assertion seeking criminal compensation for the execution of security custody in addition to detention is difficult to accept even if various circumstances are considered different from the premise.

B. Part on claim for reimbursement of expenses

1) According to the above facts, it is evident that the claimant, who was found not guilty due to a retrial case, appointed a private defense counsel at the first instance court, appellate court, appellate court, appellate court, and retrial case, and appellate court, and appellate court, and the appellate court to have the private defense counsel take charge of pleadings against the requester, and paid the attorney's fees (the attorney's fees). On the records, the above case does not constitute a case where the whole or part of the claim for compensation under each subparagraph of Article 194-2 (2) of the Criminal Procedure Act can be dismissed. Thus, the claimant has the right to claim compensation for expenses incurred in the above trial against the State pursuant to Article 19

2) Furthermore, the scope of compensation amount shall be examined by the Supreme Court Justices' Council; the attorney's fees shall be applied mutatis mutandis under Article 194-4 of the Criminal Procedure Costs Act. Meanwhile, according to Article 8(2) of the Act on the Costs of Litigation, etc.; Article 6 of the Rules on the Costs of Criminal Procedure; and Article 14(1) of the Rules on the Costs of Criminal Procedure, etc., the remuneration of a public defender shall be determined by the Supreme Court Justices' Council within the scope of each annual budget. The remuneration of a public defender shall be paid by the court. The presiding judge shall, in cases where deemed necessary to increase the remuneration of a public defender within the scope of five times the above remuneration amount determined by the Supreme Court Justices' Council. The remuneration of a public defender determined by the Supreme Court Justices' Council shall be increased by 400,000 won in cases of a criminal agreement case; 300,000 won in other cases; 50,000 won in cases of a defense counsel's difficulty in custody; 30,000 won in each of final appeal trial and one of the case.

3) Therefore, the claimant’s compensation for expenses amounting to KRW 10,400,00 among the attorney’s fees that the claimant seeks (=2,00,000 + KRW 1,500,000 + KRW 1,500,000 + + KRW 1,500,000 + + KRW 1,500,000 + KRW 1,500,500 + KRW 1,500,000 + KRW 1,20,000).

3. Conclusion

Therefore, the State is obligated to pay the petitioner KRW 387,80,000 with criminal compensation for detention, and KRW 10,400,000 with compensation for expenses. It is so decided as per Disposition.

Judges Kang Young-soo (Presiding Judge)

1) The term "person subject to security measures" in Article 2 of the former Social Security Act refers to a person who has been sentenced to imprisonment without prison labor or a heavier punishment and has been actually executed for a crime falling under any of the following subparagraphs:

2) A security measure may be taken against a person who falls under any of the following subparagraphs. 1. A person who is deemed to pose a significant risk of recommitting a crime among persons subject to a security measure or to require a custody because he/she has no fixed residence; 2. A person who is in violation of a security measure, and is deemed to pose a risk of recommitting a crime under a security measure; 3. A person who violates a security measure; 2. A person who violates a security measure; 2. A person who is subject to a security measure, shall be confined to a certain place, and edification and

3) Article 8 of the former Social Security Act provides that the period of security measures shall be two years, but the Minister of Justice may renew the period at the request of a prosecutor through a resolution of the Security Measures Deliberation Committee.

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(5) Although the claimant stated that the number of days of detention is 1,937 days, it is evident that the number of days of detention is 1,939 days in the calendar.

(6) The above Supreme Court’s decision affirms the application to criminal compensation by analogy for the execution of protective custody disposition on the following grounds. In other words, Article 1(2) of the Criminal Compensation Act provides that “a person who received a verdict of 'not guilty through the recovery of his/her right to appeal, reexamination, or extraordinary appeal may claim compensation for detention or execution of a sentence when the person who received a judgment of 'not guilty' in the procedure for appeal, reexamination, or extraordinary appeal has been detained or sentenced to execution of the sentence according to the original judgment,” and even if examining different provisions of the Criminal Compensation Act, there is no express provision that a person who received a judgment of dismissing protective custody in an extraordinary appeal procedure may claim compensation for execution of protective custody when the person is sentenced to execution of protective custody by the original judgment. However, Article 28 of the Constitution provides that “Where a non-prosecution disposition by a criminal suspect or criminal defendant is issued or is acquitted, a legitimate claim for criminal compensation may be filed with the State in accordance with the provisions of Act, and that a person subject to protective custody can be deprived of the State’s right to criminal punishment and its function.”

7) Article 20(1) of the former Social Protection Act provides that when the court examines a case for which custody is requested, it shall issue a custody order by judgment when it deems the request reasonable.

Note 8) The first instance court of the administrative case was under the jurisdiction of the high court at that time, and was defined as the second instance trial (Supreme Court).

9) Criminal cases involving protective custody are under the jurisdiction of the collegiate panel of a district court and a branch court of a district court, and were set forth in the second instance court and the third instance court (Supreme Court).

10) Article 12 of the former Social Security Act provides that a prosecutor shall make a request for security measures.

11) A Security Review Committee (hereinafter referred to as the “Committee”) shall be established within the Ministry of Justice to deliberate and resolve on matters concerning security measures (11) under Article 15 (Review Committee on Security Measures) of the former Social Security Act.

12) Article 7 (Exemption from Security Measures) (1) of the former Social Security Act (amended by Act No. 12) ① The Minister of Justice may make a decision not to take a security measure against a person who meets the requirements of the following subparagraphs among those subject to security measures (hereinafter referred to as “decision not to take a measure of exemption”). 1. He/she has not been sentenced to a fine or more within 3 years before the date of the decision of exemption; 2. There is a certain residence and occupation; 4. There is a guarantee for fidelity prescribed by the Presidential Decree; 2. The Minister of Justice shall make a decision not to exempt security measures within 3 months, except in extenuating circumstances.

13) Article 32 (Social Protection Committee) of the former Social Protection Act (amended by Act No. 13) ① In order to review and determine matters concerning the management and enforcement of protective custody, a Social Protection Committee (hereinafter referred to as the “Committee”) shall be established in the Ministry of Justice. (2) [Omission] The Committee shall review and determine the following:

14) In the above Supreme Court Decision 91Jado58 held that the same legal principle applies to a case where a protective custody is rendered in the judgment subject to a retrial or in a new judgment, and there is no room to regard otherwise in the case of a protective custody disposition, which has a nature similar to a protective custody disposition, in

15) Pre-trial detention and execution of the sentence of imprisonment, imprisonment without prison labor, or detention by original judgment are collectively referred to.

16) Specifically, the object of compensation is death penalty, fine, detention in a workhouse, minor fine, confiscation and collection (Article 5(3) through (7) of Criminal Compensation Act) which have become final and conclusive by judgment.

17) In addition, even if the law is revised in the direction of including in the scope of criminal compensation for the execution of a security protective measure, it seems desirable to establish a council separately under the jurisdiction of the Ministry of Justice, not in the court, but in the aspect of the consistency of the system.