불법구금으로 인한 손해배상액 산정에 있어 먼저 받은 형사보상금의 공제방법 - 대상판결 : 대법원 2012. 3. 29. 선고 2011다38325 판결 -

Article 5 (3) of the Criminal Indemnity Act states that “In case those who are to receive compensation for damages in accordance with the provisions of other Acts, have received indemnity under this Act for the same cause, the amount of the compensation for damages shall be determined by deducting the amount of the indemnity under this Act.”Because both criminal indemnity and tortious compensation perform the same function as means of making reparation for harm or damages that were unjustly inflicted through criminal procedure upon suspects or defendants, the above clause of CIA recognizes a correlation of deduction between been-paid indemnity and to-be-paid compensation in order to avoid duplication in reparation. Apropos of computing the end amount of to-be-paid compensation for damages according to that deduction clause, there can be two kinds of methods for deducting been-paid indemnity: one is to deduct indemnity from only the principal of compensation by way of off-setting(principal off-setting rule) and the other is to deduct indemnity from the total of compensation, which comprises interest on arrears of compensation liability, in accordance with the way and order of appropriation of performance (performance appropriation rule). On the aforementioned matter of how to deduct the already received indemnity when calculating the end amount of to-be-paid compensation for damages resulting from illegal detention, Supreme Court Decision 2011Da38325 decided Mar. 29, 2012 made clear for the first time that the performance appropriation rule is right with its reasoning as follows: “Those who suffered from wrongful detention or execution of the sentence can get tortious compensation by proving the intent or negligence of public servants involved and can otherwise conveniently get criminal indemnity without the need for that burdensome proving; in the light of the purpose of setting-up the criminal indemnity system, indemnity paid before compensation should not be detrimental to those who suffered; moreover, indemnity and compensation have the same function as means of making reparation for the identical harm or damages incurred; taking all these into consideration, when computing the end amount of to-be-paid compensation it is just and fair to deduct indemnity from the total of compensation in accordance with the way and order of appropriation of performance.” This can be seen as a good and reasonable judgement of much significance.