Supreme Court Recognizes State Liability for Illegal Acts Against Emergency Measure No. 9 Victims for the First Time... Precedent Changed After 7 Years (Comprehensive)

Supreme Court Grand Bench.
Photo by Supreme Court

[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 claim case filed by individuals detained or convicted for violating Emergency Measure No. 9, as well as 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 plaintiff Yang and the parts concerning Yang's own claim for consolation money and inheritance share, and remand these parts to the Seoul High 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 guarantee fundamental rights as stipulated in Article 8 of the Yushin Constitution. Viewed 'as a whole,' this neglect of objective duty of care renders the legitimacy of these actions lacking. Therefore, state liability for damages is recognized for harm realized through infringement of individual citizens' fundamental rights."

It added, "Contrary to this, the previous Supreme Court precedents that denied state liability by ruling that the president's issuance 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 are hereby changed."

Meanwhile, plaintiff Yang had been designated as a democratization movement participant and received compensation under the Democratization Compensation Act, which had led to dismissal of his claim in lower courts based on the effect of judicial settlement.

The Supreme Court judged that the part of Yang's claim for consolation money lost its basis because the Constitutional Court ruled in 2018 that the provision in Article 18, Paragraph 2 of the Democratization Compensation Act concerning mental damages caused by unlawful acts related to democratization movement was unconstitutional. Therefore, the lower court's ruling that the claim was inadmissible due to lack of interest in protection of rights was a misapplication of the law affecting the judgment.

The court further stated, "It is clear that Emergency Measure No. 9 is unconstitutional and invalid, and the infringement of citizens' fundamental rights caused by its issuance was realized through forced investigations, prosecutions, and guilty verdicts. In such cases, the series of state actions from issuance to enforcement of Emergency Measure No. 9, viewed 'as a whole,' involved public officials neglecting their objective duty of care in performing their duties, resulting in loss of objective legitimacy and unlawfulness. Therefore, state liability for damages is recognized for harm suffered by individual citizens due to forced investigations, guilty verdicts, and imprisonment under Emergency Measure No. 9."

The court also noted, "Even if the president's issuance of Emergency Measure No. 9 lost objective legitimacy, it is difficult to see that damage to individual citizens occurred solely from the issuance. The damage is realized through additional enforcement actions applying Emergency Measure No. 9. Since Emergency Measure No. 9 completely excluded the warrant principle, it is unconstitutional and invalid, and arrests and detentions without warrants under it violate the constitutional warrant principle, infringing on citizens' fundamental rights such as personal liberty."

It added, "Moreover, despite fundamental rights being essentially infringed during investigations, the guilty verdicts based on unconstitutional and invalid emergency measures without careful consideration of rights violations during investigations also infringe citizens' fundamental rights."

The court stated, "Furthermore, in cases where state liability for damages is at issue due to fundamental rights violations caused by a series of state actions involving numerous public officials, recognizing objective duty of care violations overall is sufficient. The Supreme Court rulings denying state liability by ruling that the president's issuance 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 are hereby changed to the extent they conflict with this ruling."

However, the court ruled that state liability for damages based on the president's independent unlawful acts is not recognized, so individuals or bereaved families cannot claim damages against the president personally.

Justices Kim Jae-hyung, Kim Seon-su, and Oh Kyung-mi dissented from the majority opinion.

The majority also concluded that independent unlawful acts by judges are not recognized.

Since the Supreme Court's full bench ruling announced this day has no retroactive effect, victims who have already lost damage claims against the state with final judgments are expected to find it difficult to receive relief.

A Supreme Court official explained, "Previously, the Supreme Court held that the president's issuance of Emergency Measure No. 9 itself could not be considered an unlawful act, and investigations and trials based on Emergency Measure No. 9 could not be regarded as unlawful acts by public officials due to intent or negligence. By changing precedent through this ruling, the court recognizes state liability for damages for harm suffered by individual citizens caused by the series of state actions from issuance to enforcement of Emergency Measure No. 9, thereby acknowledging judicial relief for fundamental rights violations by past state power. This is the significance of this ruling."

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

Emergency Measure No. 9, enacted and declared in May 1975, prohibited acts denying, opposing, distorting, or defaming the Yushin Constitution, advocating or inciting amendment or abolition, political involvement by student assemblies and demonstrations, among others, and prescribed imprisonment of one year or more for violations.

The Constitutional Court ruled in 2013 that Emergency Measure No. 9 "lacked legitimacy in legislative purpose and appropriateness of method, violated the principle of legality, and excessively restricted or infringed on 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," and declared it unconstitutional.

The Supreme Court also ruled the same year that Emergency Measure No. 9 "lacked the requirements stipulated in Article 53 of the Yushin Constitution, which was the basis for its issuance, and seriously restricted fundamental elements of democracy and citizens' fundamental rights such as freedom of expression, warrant principle, personal liberty, freedom of residence, petition rights, and academic freedom as stipulated in both the Yushin and current constitutions, thus being unconstitutional and invalid."

Victims were acquitted through retrials and received criminal compensation payments by court decisions. Subsequently, in September 2013, victims filed damage claims against the state for material and mental damages caused by Emergency Measure No. 9, based on unlawful acts.

In 2015, the Supreme Court denied government liability, ruling that "the president's exercise of emergency powers under the Yushin Constitution is a highly political state act subject to political responsibility, and cannot be regarded as constituting civil torts in relation to individual citizens."

Although the Supreme Court denied government liability for damages arising from 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 unlawful and constituted a tort, and alternatively that the investigative agencies' acts of arresting and detaining suspects without warrants, prosecuting, and the judges' judicial acts applying Emergency Measure No. 9 and issuing guilty verdicts constituted torts under civil law, filing damage claims.

They claimed the state was responsible for compensating lost income and consolation money to the directly affected individuals, and consolation money to other plaintiffs such as family members.

However, the first and second instance courts rejected the plaintiffs' claims based on existing Supreme Court precedents.

Even though Emergency Measure No. 9 was declared unconstitutional and invalid ex post facto by 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 to the entire nation, not legally obligated to individual citizens. Therefore, the president's exercise of such power cannot be regarded as constituting civil torts in relation to individual citizens.

Also, investigative agencies' acts of arresting and detaining suspects without warrants, prosecuting, and judges' judicial acts applying Emergency Measure No. 9 and issuing guilty verdicts were not considered unlawful acts by public officials due to intent or negligence, as Article 53, Paragraph 4 of the Yushin Constitution stipulated that emergency measures under Paragraphs 1 and 2 were not subject to judicial review, and Emergency Measure No. 9 had not yet been declared unconstitutional and invalid.

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

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