보상금 지급 동의의 재판상 화해 간주와 재판청구권

Considering the consent to payment of compensation as Judicial settlement and the Right to request a trial

On August 30, 2018, the Constitutional Court of Korea ruled in its decision on Hunba 180, etc. that Article 18 (2) of the Act on the Restoration of Honor and Compensation for Persons Related to the Democratization Movement was partially unconstitutional. The provision at issue stipulates that when the applicant agrees to the decision to pay compensation, etc., it shall be deemed that a judicial settlement has been established in according to the provisions of the Civil Procedure Act for the damage suffered in connection with the democratization movement. In this decision, the Constitutional Court considered that only “the part related to mental damage caused by illegal acts” among the “damages suffered in connection with the democratization movement” violated the Constitution. This thesis critically reviewed the validity of the decision of the Constitutional Court, and came to the following conclusions: (1) The Constitutional Court recognizes only the right to claim national compensation as a basic right that is infringed by the provision. However, it should be viewed as an infringement of the right to request a trial. Even if one concession is made, it is reasonable to understand that it is a simultaneous infringement of the right to claim national compensation and the right to a trial. (2) It is reasonable that the Constitutional Court considered that mental damage was not reflected in the committee s decision on compensation under the Democratization Compensation Act. Therefore, applying the provision to mental damage violates the excessive prohibition rule. (3) However, if the judgment of acquittal is confirmed through retrial ex post, recalculation should be considered not only for mental damage but also for positive and passive damages, so the unconstitutionality of the above provision should have been confirmed in that regard.