Decisions

All

TITLE	Seoul Central District Court Decision 2016GaHap545748 Decided Nov. 26, 2021 : Appealed [full Text]
Summary
【Main Issues and Holdings】 In a case where Party A and Party B, individuals who had defected from North Korea after residing there, applied for protection under Article 7 of the former North Korean Defectors Protection and Settlement Support Act at an overseas diplomatic or consular mission, entered the Republic of Korea, and subsequently resided at a facility established and operated by the Director General of the National Intelligence Service, where they underwent investigation by the facility's investigators for 176 days and 165 days, respectively, regarding the determination of their protection status, but after receiving a ‘denial’ decision on protection, on the grounds that their drug brokering and trafficking activities in China and elsewhere constituted exceptional circumstances precluding a protection order, Party A and other claimed that the investigation was, in substance, a criminal investigation; however, the investigators at the facility committed unlawful acts, such as illegally detaining them without obtaining an arrest warrant or detention warrant, and that even if the investigation was an administrative inquiry rather than a criminal investigation, the investigators committed unlawful acts, such as detaining them for an extended period in violation of the principle of proportionality, and sought damages from the state, the court rejected the claims of unlawful detention and others, citing reasons such as that the investigation of Party A and Party B at the facility did not constitute an investigation of them as criminal suspects, and further held that, even if Party A and other were subjected to an administrative investigation, the State is liable for the damages suffered by Party A and other because the Director General of the National Intelligence Service detained them in the facility for an investigative period exceeding the maximum 120 days permitted under the current Enforcement Decree of the North Korean Defectors Protection and Settlement Support Act, thereby violating the constitutional principle of proportionality and infringing upon the fundamental rights of Parties A and B.

TITLE

Seoul Central District Court Decision 2016GaHap545748 Decided Nov. 26, 2021 : Appealed [full Text]

Summary

【Main Issues and Holdings】 In a case where Party A and Party B, individuals who had defected from North Korea after residing there, applied for protection under Article 7 of the former North Korean Defectors Protection and Settlement Support Act at an overseas diplomatic or consular mission, entered the Republic of Korea, and subsequently resided at a facility established and operated by the Director General of the National Intelligence Service, where they underwent investigation by the facility's investigators for 176 days and 165 days, respectively, regarding the determination of their protection status, but after receiving a ‘denial’ decision on protection, on the grounds that their drug brokering and trafficking activities in China and elsewhere constituted exceptional circumstances precluding a protection order, Party A and other claimed that the investigation was, in substance, a criminal investigation; however, the investigators at the facility committed unlawful acts, such as illegally detaining them without obtaining an arrest warrant or detention warrant, and that even if the investigation was an administrative inquiry rather than a criminal investigation, the investigators committed unlawful acts, such as detaining them for an extended period in violation of the principle of proportionality, and sought damages from the state, the court rejected the claims of unlawful detention and others, citing reasons such as that the investigation of Party A and Party B at the facility did not constitute an investigation of them as criminal suspects, and further held that, even if Party A and other were subjected to an administrative investigation, the State is liable for the damages suffered by Party A and other because the Director General of the National Intelligence Service detained them in the facility for an investigative period exceeding the maximum 120 days permitted under the current Enforcement Decree of the North Korean Defectors Protection and Settlement Support Act, thereby violating the constitutional principle of proportionality and infringing upon the fundamental rights of Parties A and B.

Prev	Seoul Central District Court Decision 2021Gahap503052 Decided December 9, 2021: Appeal
Next	Supreme Court Decision 2021Du46421 Decided November 25, 2021 【Revocation of the Disposition of Deferment of Import Clearance】

list