긴급조치 제9호의 발령 및 적용·집행 행위로 인한 국가배상책임

The Supreme Court opined that the Emergency Decree No. 9 is unconstitutional through Supreme Court en banc Order 2011Chogi689 dated April 18, 2013. According thereto, those who had been investigated or punished for violating the Emergency Decree No. 9 claimed compensation from the State, but the Supreme Court did not accept such claim for compensation from the State. Supreme Court Decision 2013Da217962 decided October 27, 2014 determined that viewing that the acts related to the duties of an investigative agency that advanced investigation and instituted a public prosecution by arresting and detaining a suspect without a warrant by Emergency Decree No. 9 or judicial acts related to the duties of a judge who rendered a guilty verdict by applying the Emergency Decree No. 9 correspond to torts arising from intention or negligence is difficult, and Supreme Court Decision 2012Da48824 decided March 26, 2015 determined that the proclamation of the Emergency Decree No. 9 by the President cannot be seen to constitute any civil tort in the relationship with every citizen. A critical view to the effect that the State shall be liable to compensate for damage with respect to the Supreme Court precedents, which denies the liability of the State to compensate for damage, was predominant. To be specific, such critical view can be divided into the following two categories such as a view deeming the proclamation of the Emergency Decree No. 9 by the President as a unlawful act and a view admitting liability for an illegal act in respect of a series of acts performed by the State including the proclamation, application, and execution of an emergency measure. To the same effect, the judgment of he lower court which recognized a claim for compensation from the State on the grounds that the Emergency Decree No. 9 is unconstitutional was rendered. Under these circumstances, the Supreme Court altered previous precedents, denying the State’s liability to compensate for damage arising from the Emergency Decree No. 9, by the assent of all Justices on the bench. The Majority Opinion of the subject case recognized a series of acts performed by the State including the proclamation, application, and execution of an emergency measure as illegal acts. Such view can be seen to have been formed in comprehensive consideration of the following circumstances: the consistency with previous decisions; that admitting such liability is not easy even when examining whether the State’s liability to compensate for damage arising from an emergency measure may be recognized on the same basis as legislation; that viewing a series of acts performed by the State as illegal acts accords with historical reality; and that the court has already adopted such legal doctrine as a ground to recognize the liability of the State to compensate for damage in the past human rights violation cases. A view recognizing a series of acts performed by the State including the proclamation, application, and execution of an emergency measure as illegal acts has a practical meaning that the liability of the State to compensate for damage can be admitted even where recognizing the liability of the State to compensate for damage arising from an individual act is difficult. In addition thereto, whether an unlawful act committed by the President and a judge may be constituted became an issue in the subject case. The Majority Opinion reserved its judgment thereon. As long as a series of acts performed by the State including the proclamation, application, and execution of an emergency measure are deemed illegal acts, this may mean that whether the proclamation of an emergency measure by the President or judicial acts related to the duties of a judge may constitute independent torts does not need to be determined. However, the Opinion concurring with the Majority Opinion by Justice Min You-sook refuted the Concurring Opinion admitting illegal acts of the President or a judge as below by viewing that the liability for an unlawful act committed by the President cannot be recognized and an illegal act is not independently constituted with regard to a judicial act related to the duties of a judge. The Concurring Opinion by Justice Kim Jae-hyung, who takes up the stance that the President’s illegal act can be admitted, determined that the proclamation, application and execution of an emergency measure can be admitted as illegal acts in that any practical damage cannot be seen to have arisen on the sole basis of the proclamation of the Emergency Decree No. 9 and damage practically occurred through the ensuing investigation and trial. In such a case, according to the Concurring Opinion by Justice Kim Jae-hyung, the proof of public officials’ intention or negligence is alleviated on the analogy of Article 760(2) of the Civil Act and any independent illegal act is not constituted in respect of a judge’s judical act. The Concurring Opinion by Justice Kim Seon-soo and Justice Oh Kyeong-mi viewed that the liability for an unlawful act committed by the President can be admitted with respect to the execution thereof as well as the proclamation of an emergency measure and the liability for an illegal act in respect of a judgment of conviction rendered by a judge can be recognized. Moreover, the Concurring Opinion by Justice Ahn Chul-sang, in relation to a question raised with respect to a relationship with the nature of the liability of the State to compensate for damage, admitted a series of acts performed by the State as illegal acts as in this case by construing the liability of the State to compensate for damage as the State’s own responsibility and determined that more theoretical explanation for such opinion is possible by viewing that if any violation of objective duties of care is recognized in its totality, the State’s negligence in performing its official duties is admitted. The above Concurring Opinions hold the same view in that the liability of the State to compensate for damage should be recognized but a different view in terms of the basis for the recognition for the liability of the State to compensate for damage. The subject case has great significance in the sense that it intended to promote the recovery from the victims’ damage arising from the Emergency Decree No. 9 by altering previous precedents and admitting the liability of the State to compensate for damage by the assent of all Justices on the bench.