유신헌법하의 긴급조치와 국가배상 청구의 요건 = Emergency Measures under the Yushin Constitution and Requirements for Claiming State Compensation

다국어 초록 (Multilingual Abstract)

It is known that more than a thousand people were convicted of violating the emergency measures during the processes of the implementation of the Yushin Constitution, the nationwide resistance to the foregoing, and the issuance and execution of emergency measures to suppress the resistance. Thereafter, when democratization had been achieved, the verdicts of acquittal of violators of emergency measures were made at retrials and claims for state compensation for damage due to the issuance and of execution of emergency measures under the Yushin Constitution were lodged. In response, the Supreme Court denied the nature of activity of duty of the President's act of issuing emergency measures. In addition, the Supreme Court did not acknowledge intention or negligence of the investigative authority that conducted investigations on violators of emergency measures and prosecuted them, and of judges that applied emergency measures to give the guilty verdict, thereby completely disregarding the historical mission that is recover justice by correcting past. According to the Supreme Court precedent, the victims of emergency measures can claim state compensation only in cases where they prove illegal detention, torture, and other harsh acts during the investigation and trial processes. However, since it is not easy to prove the atrocities that were secretly carried out by investigative agencies more than 50 years ago, it can be said that the road to claiming state compensation was actually blocked.
However, since the attitude of precedents is that the President’s act of issuing emergency measures corresponds to legislation, and that even if it is legislation, in special cases such as cases where the relevant legislation was carried out despite that the content of the legislation clearly violates the text of the Constitution, the President’s act corresponds to the illegal act prescribed under Article 2 Paragraph 1 of the State Tort Liability Act, it is not justified for the Supreme Court to deny the nature of activity of duty of issuing emergency measures. In addition, in light of the fact that the emergency measures were issued to solidify the foundation for life-long rule at the expense of a wide range of related basic rights without even meeting the requirements for invoking emergency measures stipulated in the Yushin Constitution so that the contents clearly violated the words of the Yushin Constitution, and the fact that at that time, not only were there widespread allegations of unconstitutionality of the emergency measures, but also there were social conflict situations such as large-scale protests against the Yushin Constitution and emergency measures and incidents of restriction, etc., it can be said that the investigative agency that proceeded with the investigation of violators of emergency measures and prosecuted them and the judges who applied the emergency measures to give the guilty verdict could clearly recognize the unconstitutionality of the emergency measures so that it was reasonable to acknowledge the intentions and negligence.
Therefore, it is reasonable to view that the responsibility of state compensation is established for the victims who suffered damage from the issuance and execution of emergency measures, and the Supreme Court should change the precedent now to recognize the claims for state compensation of the victims of the emergency measures. However, a problem is that victims for whom the period of three years have already passed since the verdicts of acquittal at retrials, and those who have filed a claim for state compensation after the verdicts of acquittal at retrials but have been dismissed for the reason of the completion of the extinctive prescription cannot receive the relief even if there is a change of precedents. In the end, the most desirable and democratic way to solve these problems should be through legislation, such as the enactment of a special law or revision of the Basic Act of His...

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