긴급조치 제9호를 적용한 법관의 책임: 대법원 2022.8.30. 2018다212610 전원합의체 판결

The 2022 Supreme Court en banc ruling on Emergency Measure No. 9 made a big change in the legal doctrine of state liability for compensation. The Supreme Court justices showed significant differences in detailed issues, but unanimously acknowledged the state liability for torts. The majority opinion did not specify the individual responsibilities of public officials involved in the application of Emergency Measure No. 9, but roughly recognized state liability under the magical umbrella of a series of state actions. Opinions of justices were sharply divided over whether a conviction by the judges applying Emergency Measure No. 9 constitutes an independent tort. While most of the justices denied or avoided the legal liability of the judges, two justices Kim and Oh acknowledged the liability of judges and clearly highlighted the calling of judges as guardians of the law. As long as the unconstitutionality of Emergency Measure No. 9 is serious and obvious, it is self-evident that the application of such unconstitutional criminal law is unlawful and culpable. If a judge were forced to sentence a conviction under the threat of life, this situation could exclude the responsibility of the judge. However, it seems that such circumstances did not actually exist. Therefore it is questionable, both legally and morally, that the Supreme Court justices neither acknowledged the responsibility of the judges who applied the bad law, nor even made an official apology on behalf of the entire legal profession.