Supreme Court Recognizes State Liability for Damages to Victims of Emergency Measure No. 9 for the First Time... Precedent Changed After 7 Years

Supreme Court Grand Bench.
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[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has issued its first ruling recognizing the state's liability for damages to victims who were detained or convicted for violating Emergency Measure No. 9, which was declared during the Park Chung-hee Yushin regime.

Although Emergency Measure No. 9 was ruled unconstitutional and invalid in 2013, the Supreme Court had denied the establishment of tort liability under civil law in 2015, reasoning that the president's exercise of emergency powers was a highly political act. However, the court reversed its stance after seven years.

On the 30th, the Supreme Court's full bench (Presiding Justice Kim Jae-hyung) overturned the lower court's dismissal of the plaintiffs' claims in the appeal hearing of the damages lawsuit filed by those detained or convicted for violating Emergency Measure No. 9, including the individuals themselves, their families, and heirs, and remanded the case to the Seoul High Court.

The court stated, "We overturn the lower court's ruling regarding all plaintiffs except Yang and the claims for Yang's own consolation damages and inheritance shares, and remand these parts of the case to the Seoul High Court."

Yang was a plaintiff who had been designated as a democratization movement participant and received compensation under the Democratization Compensation Act, leading to the recognition of the effect of judicial settlement and dismissal in the lower court.

The court explained, "The state's actions related to the issuance, application, and enforcement of Emergency Measure No. 9, as well as the performance of duties by public officials involved, violated the principle of the rule of law and failed to fulfill the state's obligation to protect fundamental rights as stipulated in Article 8 of the Yushin Constitution. Viewed 'holistically,' this neglect of objective duty of care lacks legitimacy, and thus state liability for damages is recognized for harm realized by infringement of individual citizens' fundamental rights."

It added, "Contrary to this, the previous Supreme Court precedent denying state liability on the grounds that the president's issuance, application, and enforcement of Emergency Measure No. 9 do not constitute unlawful acts by public officials under Article 2, Paragraph 1 of the State Compensation Act is hereby overturned."

The plaintiffs in this case were individuals or their heirs who were arrested, detained, released, or prosecuted and convicted in the 1970s for violating Emergency Measure No. 9.

Emergency Measure No. 9, enacted and proclaimed in May 1975, prohibited acts such as denying, opposing, distorting, or defaming the Yushin Constitution, advocating or petitioning for its amendment or abolition, and political involvement in student assemblies or demonstrations, with penalties including imprisonment for more than one year for violations.

In 2013, the Constitutional Court ruled Emergency Measure No. 9 unconstitutional, stating, "It lacks legitimacy in legislative purpose and appropriateness in method, violates the principle of legality, and excessively restricts or infringes upon citizens' fundamental rights such as suffrage related to constitutional amendment power, freedom of expression, freedom of assembly and demonstration, warrant principle and personal liberty, and academic freedom, thus violating the Constitution."

In the same year, the Supreme Court also ruled, "Emergency Measure No. 9 lacks the requirements stipulated in Article 53 of the Yushin Constitution, which was the basis for its issuance, and seriously restricts fundamental rights such as freedom of expression, warrant principle, personal liberty, freedom of residence, petition rights, and academic freedom, which are essential elements of democracy and protected by both the Yushin and current constitutions, thus it is unconstitutional and invalid."

Following this, victims were acquitted through retrials and received criminal compensation as decided by the courts. Subsequently, in September 2013, victims filed a damages lawsuit against the state, claiming material and psychological damages caused by Emergency Measure No. 9 as unlawful acts.

However, in 2015, the Supreme Court denied the government's liability for damages, stating, "The president's exercise of emergency powers under the Yushin Constitution is a highly political state act subject to political responsibility, and cannot be considered a civil tort in relation to individual citizens."

Although the Supreme Court denied the government's liability for damages arising from the exercise of Emergency Measure No. 9, some lower courts later issued rulings contrary to the Supreme Court's conclusion.

The plaintiffs in this case argued primarily that the president's issuance of Emergency Measure No. 9 itself was illegal and constituted a tort, and alternatively that the investigative agencies' acts of arresting and detaining suspects without warrants, conducting investigations, and prosecuting, as well as judges' judicial acts applying Emergency Measure No. 9 to convict, constituted torts under civil law, filing claims for damages.

They claimed that the state is responsible for compensating lost income (lost earnings) and consolation damages to the individuals directly harmed by the state's unlawful acts, and consolation damages to the other plaintiffs such as family members.

However, both the first and second trials rejected the plaintiffs' claims, citing existing Supreme Court rulings.

Even though Emergency Measure No. 9 was declared unconstitutional and invalid ex post facto by the courts, the president's exercise of emergency powers under the Yushin Constitution was a highly political state act, and the president is politically responsible in principle only to the entire nation, not legally obligated to individual citizens, so such exercise of power cannot be considered a civil tort in relation to individual citizens.

Furthermore, the investigative agencies' acts of arresting and detaining suspects without warrants, conducting investigations, and prosecuting, as well as judges' judicial acts applying Emergency Measure No. 9 to convict, were not considered unlawful acts by public officials with intent or negligence under Article 53, Paragraph 4 of the Yushin Constitution, which stipulated that emergency measures under Paragraphs 1 and 2 are not subject to judicial review, and since Emergency Measure No. 9 had not yet been declared unconstitutional and invalid, it was difficult to view these acts as unlawful.

After receiving the case in February 2018 and referring it to the full bench for review, the Supreme Court overturned the second trial's ruling.

This content was produced with the assistance of AI translation services.