Ⅰ. Background and Purpose
This three-year research project is aimed at looking into the institutionalization measures and security measures in Korea by characterizing them as organically amalgamated mechanisms of social control. Through the project, the researchers also sought to explore how these social policing measures taken by the authoritarian regime, one administrative and the other legislative, targeted lower-class urban residents and violated their human rights, and what factors drove these practices. In Year 1 of this project (2019), the project focused on the human rights violations committed in the form of forced labor under the National Development Policy immediately following the 1961 Military Coup and in 1968 and 1969, especially the National Construction Projects and the Self-Help Settlement Projects. In Year 2 (2020), the project analyzed the reality and structure of human rights violations committed through security measures and institutionalization in the 1970s including security measures under the Social Safety Act enacted and effectuated in 1975, the institutionalization of ‘vagrants’ pursuant to Ministry of the Interior Directive No. 410, the institutionalization of ‘women requiring protection’ under the Act on the Prevention of Prostitution, etc., and the institutionalization of Hansen’s disease patients. In 2021, the final year, the project overviews the enactment and implementation of the Social Protection Act of 1980 and investigates the crackdown on ‘gangsters’ under Samcheong Plan No. 5 and follow-up measures in the form of forced institutionalization and surveillance, followed by a comprehensive discussion on how to reconcile the past of state violence and human rights violations against social outcasts and the related legal issues.

Specifically, the purpose of this year’s project is to shed light on the reality and structure of human rights violations committed by the ‘Samcheong Education’ implemented as part of the Social Purification Campaign in the 1980s and the Social Protection Act, which was enacted as a follow-up measure for the former. Additionally, it comprehensively addresses the subject of how to reconcile past state violence and human rights violations committed in the social policing sector, along with the related legal issues, and explores various options for restitution. The cases investigated in Years 1 and 2 of the project are revisited to review the policies, cases, and legal issues pertaining to compensation for victims and the restoration of their honor and propose recommendations for restitution in the future. In particular, the researchers sought to explore the legal issues surrounding reparative justice in the context of reconciliation of past state violence, and suggest ways to improve on the relevant practices.

To this end, we reviewed previous studies and analyzed government s collected at the National Archives of Korea. (1) The researchers searched the National Archives of Korea to and collect government s related to the proposal and enactment of the Social Protection Act and the Samcheong Education program. The researchers also analyzed the operation of, and changes in, protective custody by examining official statistics including the Institute of Justice Crime White Paper. The researchers also reviewed literature discussing legal issues pertaining to Samcheong Education and other state violence cases, including retrials, criminal compensation, and state compensation cases. The researchers also collected and reviewed materials about the activities of committees established under various special laws on transitional justice, including the Truth and Reconciliation Committee, as well as the data on the current status of reparation efforts.

Ⅱ. Social Purification Campaign and State Violence in the 1980’s
1. Samcheong Plan No. 5 and Human Rights Violation
On July 28, 1980, the Social Purification Subcommittee under the Special Committee for National Security Measures established the “Gangster Mop-up and Pacification Plan.” The martial law command and the Ministry of Justice relayed the plan to each martial law office and prosecutors’ office. The Gangster Mop-up and Pacification Plan listed the targets to be mopped up as criminals who committed violence, those who committed fraud or extortion, and criminals who disrupted the social customs. Specifically, the plan focused on “convicts and criminals with high risk of relapse who do not show any sign of repentance and are criticized by the people, people who joined gangs, and those who repeatedly commit antisocial acts under the protection of their organizations.” However, the military-police crackdown campaign launched on August 1, 1980 was widely off the mark. Despite their stated goal of arresting and mopping up habitual criminals and others with high likelihood of committing crimes, 35.9% of the 60,755 persons arrested by the military and the police had no prior criminal record. The percentage moves up to 58.2% when including first-time offenders.

During the crackdown campaign, the police acted in the foreground while the military provided backup. The police created a list of offenders, people with prior records, and those “criticized by the people,” before instructing the targets to appear before the police or arresting them without warrant under the pretext of ‘voluntary accompaniment.’ The police also set aside a ‘self-report period,’ during which 603 people turned themselves in. The police also arrested convicts who were released during the crackdown period, by having them transferred directly from the prisons to police stations. These arrestees were classified into four classes (A to D) at police stations, through joint reviews conducted by the military, the police, and the prosecution. The reviews relied on the s prepared by the police, and the arrestees were not accorded a chance to make statements.

Among the 40,347 arrestees classified as Class B or C, 39,742 went through Pacification Training. 319 of them were women. The Pacification Education continued from August 4, 1980 until January 23, 1981, immediately before the martial law was lifted. The education program, four weeks for men and three weeks for women, took place at military units designated as pacification education units. The military pegged the arrestees-turned-trainees as “sinners” with “tainted past,” and subjected them to arduous and painful training regimen described as “Regeneration Training.” However, 34% of the trainees who went through the programs during the phase 1 period (August 4, 1980 to August 30, 1980) were not convicts. In a survey conducted with former trainees, the majority of the respondents answered that they were wrongfully arrested. This reality contradicts the military’s characterization of the programs as “Regeneration Training” for “Sinners.”

After the Pacification Education, depending on the results of another classification review, the trainees were either released or transferred to Labor Service Units and put into various construction projects including mobile outposts, combat positions, strategic roads, and underground communication cables. There Labor Service began on September 8, 1980, and 10,1016 trainees were committed to nine different construction projects after being classified as Class B during the crackdown or the Pacification Education.

Trainees released after Pacification Education and Labor Service were subjected to continuous control under the “follow-up management” of Samcheong Education graduates. The graduates were required to always carry the certificate of completion issued by the commander of the training unit. The certificate specified the graduate’s name, date of birth, resident registration number, legal domicile, and address, as well as statements that the carrier is confirmed as Samcheong Pacification Education graduate and is subject to severe punishment if he/she commits any crime once again. Lists of graduates were notified to the police stations near their addresses. The Ministry of the Interior instructed local administrative bodies to conduct follow-up management activities by continuously contacting the graduates through such organizations as Local Purification Committees. The police created and kept follow-up management record cards for individual graduates, and used these “prior Samcheong Education records” for criminal investigation until June 1988.

The targets of Samcheong Plan No. 5 were exposed to violence and other abusive practices from the moment they were arrested. Some of them even died from the violence committed by the police and the military during arrests. According to the records, a total of 54 arrestees/trainees wee killed throughout the arrest/Pacification Education/Labor Service process. 22 of them died between August 1 and September 25, 1980, during the early stage of the crackdown and Pacification Education. However, none of the military service members involved in the deaths were sentenced. They either had their indictment suspended or dismissed, or had their sentence suspended or exempted. Some deaths were not even investigated, and the identity of the assailants were kept in the dark.

2. Social Protection Act and Human Rights Violation
The Social Protection Act was approved by the National Security Legislative Council on December 5, 1980, and promulgated on December 18. The Act was designed to provide for the “follow-up management measures” for gangsters or “social isolation measures for non-pacified criminals” under Social Protection Act. In particular, the Social Protection Act provided for “protective custody,” which means institutionalizing criminals who were sentenced multiple times for similar or the same type of crimes and considered to be likely to relapse in protective custody facilities, in order to put them under custody, reform the criminals, and provide them with vocational training and labor required for return to society.

The Social Protection Act restricted the scope of criminals subject to protective custody to those with priors of “similar or the same type of crimes.” In fact, this provision widened the scope of criminals subject to protective custody by grouping crimes with disparate elements and crimes infringing on different legal interests under the same category of “similar or the same type of crimes.” In addition, until the scope of the prior record and crime requirements was reduced in the 1989 amendment, the Social Protection Act did not restrict the crimes that serve as basis for protective custody. All convicts who commit similar or the same type of crimes could be subject to protective custody. The broad scope of the prior record and crime requirements under the Social Protection Act, combined with various provisions on aggravated punishment for repeated and habitual criminals, made it so much easier to impose protective custody despite it being a severely freedom-restricting measure.

As of December 18, 1980, a total of 10,288 Class B and Class C trainees were held at Pacification Education Units and Labor Service Units under Article 5 of the Addenda of the Social Protection Act. 7,578 of the detainees were subject to protective custody by decisions of the Social Protection Committee, of which 225 did not have any prior criminal record. The Social Protection Committee did not individually review the trainees. It simply acknowledged the classification results from the Ministry of Justice, and determined the period of custody. The trainees sentenced to protective custody remained at the Pacification Education Units and Labor Service Units until the Cheongsong Custody were completed in December 1981, at which time 68% of the detainees detained pursuant to the Addenda were released and the others were transferred to Cheongsong Detention Center after it began operation. The detainees pursuant to the Addenda were sentenced to between one to five years of protective custody by the decision of the Social Protection Committee. 7,122 of the detainees were prematurely released before the end of their custody periods, and the other 430 detainees served their sentence in full. By 1989, all detainees under the Addenda had been released.

As for the other detainees, while most of them have multiple criminal records, a closer look into their crimes reveals that few of them caused serious harm to others’ life or bodies, and most of the detainees were thieves. In addition, given the academic background of the detainees, they were members of socially ‘disadvantaged’ groups with low academic attainment and financial status who committed minor crimes, rather than criminals with high risk of relapsing to crimes violating crucial legal interests.

The Social Protection Act was enacted as a follow-up measure to Samcheong Plan No. 5 aimed at socially isolating the so-called “unpacified gangsters.” As such, the criminal sanctions under the Act are security measures purely designed for defending the society from criminals, and reformation was never one of the motivations for its enactment. In addition, the Act provided for mandatory protective custody without consideration of relapse risk, and the reality of the measures under the Act was more severe than criminal punishments, which goes on to show that the protective custody under the Social Protection Act seriously lacked the function of helping criminals with risk of relapse return to society through education and reformation.

The Ministry of National Defense Commission on Truth and Reconciliation concluded that Martial Law Declaration No. 13 is unlawful because the declaration was purely aimed at maintaining social order, and Article 13 of the old Martial Law Act, under which the declaration was issued, only applies when there exists “military need” for the purpose of military operations. On December 28, 2018, the Supreme Court ruled that Martial Law Declaration is null and void because it violates not only the old Martial Law Act, but also both the 1972 Constitution and the current Constitution, thereby affirming that Samcheong Education was a form of state violence committed without any legal basis. Therefore, the protective custody of the Samcheong Education trainees under Article 5 of the Addenda of the Social Protection Committee was the result of their arrest, Pacification Education and Laboer Service they received, and the reviews by the Social Protection Committee, all of which were based on the unconstitutional Martial Law Declaration No. 13. As such, the protective custody lacks constitutional basis. In addition, the protective custody imposed on the victims of Samcheong Education was a criminal sanction imposed by an administrative institution that is the Social Protection Committee, which did not even constitute a quasi-judicial body. It means that Article 5 of the Addenda of the Social Protection Act does not remedy the unconstitutionality of Martial Law Declaration No. 13, because the provision itself violates the due process principle under the Constitution.

The Act on Restoration of Honor and Compensation for Victims of Samcheong Education, enacted on January 29, 2004 and implemented on July 30 of the same year (the “Samcheong Education Victim Act”) defines “Samcheong Education” as the “Pacification Education and Labor Service under Martial Law Declaration No. 13 or the protective custody imposed under Article 5 of the Addenda of Act No. 3286 Social Protection Act.” According to the Act, the victims of Samcheong Education included those who died or went missing, died from injuries sustained, or were injured on account of Samcheong Education. Samcheong Education is an unconstitutional form of state violence that subjected the trainees to extreme physical pain and human rights violations. As such other than those who died, went missing, or sustained injuries on account of Samcheong Education, those “proven to have been subjected to Samcheong Education” should be also acknowledged the right to claim reparation including full compensation for the damages inflicted on them.

Ⅲ. Compensation and Reparation in Historical Justice Cases
1. Resolution of Historical Justice Cases and Judicial Compensation
In most historical justice cases involving state violence, except for cases where victims were compensated based on legislative grounds including special acts governing compensation for victims of specific incidents such as the May 18 Gwangju Democratic Uprising, reparation was mainly achieved by individual lawsuits filed by victims or surviving families against the state, or criminal compensation claims under the Act on Criminal Compensation and Restoration of Impaired Reputation (the “Criminal Compensation Act”) filed by victims or surviving families after obtaining an acquittal through a retrial.

(1) In this study, the researchers asked whether the victims of human rights violations caused by illegal use of government power in the area of social policing may be acknowledged the right to claim state compensation for the violations. To answer the question the researchers analyzed the key requirements for state compensation as follows. First, as was the case with the Brothers Home case, human rights violations against people subject to institutionalization were caused by the entities who were delegated by the government to operate the facilities. This point is further supported by the fact that Article 2 (1) of the State Compensation Act include both “public officials” and “private persons entrusted with public duties” in the scope of persons whose job performance may trigger state compensation liabilities. Second, Article 2 (1) of the State Compensation Act stipulates that the state may be liable to compensate for damages inflicted by a public official or a private person entrusted with public duties “by intention or negligence... in violation of the statutes.” The “statutes” in this sentence are not restricted to laws and regulations in the strict sense of the words. The phrase “violation of the statutes” includes objectively unjustifiable actions committed in violation of respect for human rights, prohibition of abuse of power, good faith and due diligence, and other principles and norms applied to public officials. In other words, if a public official violated a basic right of another person through his/her performance of duties in violation of the principle of proportionality or the principle of anti-overrestriction, the official inflicted damage in violation of the statutes, for which the state may be held liable. Administrative Rules, that is, guidelines on work procedures or interpretation/application of statutes issued by administrative bodies for their employees or subsidiary bodies, such as Ministry of the Interior No. 410 issued in 1975, are only effective within the administrative organizations and do not bind the public or the courts. As such, a public official’s violation of an Administrative Rule does not constitute an illegal act in and of itself. Conversely, compliance with Administrative Rules does not guarantee the lawfulness of the relevant act.

(2) We also need to discuss whether criminal compensation under the Criminal Compensation Act can be granted with regard to security measures under the old Social Safety Act and protective custody under the old Social Protection Act. First, in the event that a person acquitted in a retrial had been sentenced to protective detention or protective custody under the old Social Protection Act, the person should be allowed to claim criminal compensation under Article 2 of the Criminal Compensation Act. However, it is less clear that an acquitted person who had been subjected to security measure under the Social Safety Act may be granted criminal compensation. The security measure under the old Social Safety Act was issued by the Minister of Justice’s security measure decision against convicts who served their sentences. The measure was imposed on top of the punishment ordered by the judgment in the criminal case. For this reason, even if the person is acquitted through a retrial, the judgment in the retrial case does not affect the protective custody decision of the Minister of Justice. The decision, in principle, must be revoked through an administrative litigation process. In other words, it appears to be difficult to apply Article 2 (2) of the current Criminal Compensation Act to the enforcement of security measures under the Social Safety Act imposed outside of court. This issue requires a legislative action that expands the acts eligible for criminal compensation to include the enforcement of security measures under the old Social Safety Act.

(3) There exist many legal obstacles to financial compensation for damage suffered by victims of state violence and their families through state compensation and criminal compensation, one of which is the statute of limitation for state compensation. However, this issue was resolved in large part by Constitutional Court Decision 2014 Heon Ba 148, etc. decided August 30, 2018 (the “Constitutional Court Decision 2014 Heon Ba 148”). In Constitutional Court Decision 2014 Heon Ba 148, the court concluded that Article 166 (1) of the Civil Act (which governs the starting point of calculating the long-term statute of limitation period) and Article 766 (2) of the Civil Act (regarding the long-term statute of limitation period of compensation claims arising from torts) are unconstitutional insofar as they apply to cases under Article 2 (1) 3 of the Framework Act on the Liquidation of Past History for Truth and Reconciliation (massacre of civilians) and cases under Article 2 (1) 4 of the same Act (serious violation of human rights or suspected fabrication). The decision created the possibility for victims and family members whose claims had been restricted by the Supreme Court decisions since 2013 to satisfy their claims in full.

However, many issues surrounding statutes of limitation still remain unsolved. In fact, Constitutional Court Decision 2014 Heon Ba 148 does not affect final and conclusive judgments rendered before the Constitutional Court decision, except for the case for which the constitutional lawsuit was filed. In other words, the decision does not affect victims whose claims were rejected on or before August 30 2018. In addition, victims and families may be denied state compensation if they fail to file claims within three years from the service of the truth finding decision of the Truth and Reconciliation Committee, or within three years after the final and conclusive acquittal in the retrial.

Even though Constitutional Court Decision 2014 Heon Ba 148 significantly contributed to alleviating the problems caused by the statute of limitation, it is not sufficient to achieve full preparation of the damage suffered by victims and family members caused by the confusion surrounding the judiciary’s interpretation of the relevant provisions. To fill the gap in the courts’ interpretation of the statutes and protect the rights of victims and their families in meaningful ways, we need policy changes including an assurance from the government (Minister of Justice) that it will not rely on the statute of limitation in future litigations. In addition, and more fundamentally, we need legislative actions aimed at improving the current law on the statute of limitation for state compensation claims.

2. Compensation Through Legislative Actions/
The progress of democracy in the Korean society resulted in several special laws on specific historical justice cases, which included provisions on compensation/ reparation for victims and surviving families. Despite such outstanding achievements, these laws clearly have their limits. First, different acts offer different definitions of victims eligible for financial reparation, which translates into lack of equity and consistency. The current practice of enacting special acts for specific cases based on political situations at the time may offer the benefit of facilitating political compromise and solutions for those specific cases. However, such practice hardly constitutes a fundamental solution that clarifies the responsibility of the state, characterizes the measures for financial reparation as reparation for damage rather than compensation, ensure equity and consistency, and achieve reparative justice in meaningful ways.

Therefore, in the short term, we need to revise the special acts on historical justice cases to align their disparate provisions on the scope of victims, the organization of reparation/compensation review committees, the qualifications of committee members, and the type of reparation/compensation. In addition, in the long term, the provisions on reparation/compensation need to be separated from those on truth finding and restoration of honor and integrated into a single Act governing reparation/compensation for victims of state violence, so as to ensure comprehensive, systemic, and uniform state compensation provided by an institution that operates in accordance with consistent principles.

The matters that need consideration when enacting a comprehensive special Act on the reparation/compensation for victims of state violence include: the title; the scope of victims of “historical justice cases involving state violence”; methods of reparation/compensation; methods of payment; proof of damage; and statute of limitation.

First, the title of the Act should reflect the unlawfulness of state violence and the nature of reparation under the Act. As such, the researchers propose the “Act on Reparation for Victims of Historical Justice Cases Involving State Violence” (the “State Violence Reparation Act”), to clarify that the parties that need to be compensated are “victims” of state violence (not “relevant parties” or “those sacrificed by state violence”) and that the Act provides for reparation for damage suffered by them (“배상(Baesang)” in Korean) not compensation granted by the government (“보상(Bosang)” in Korean). In addition, those eligible for claiming reparation under the Act need to be restricted to the victims and surviving families (including spouses in de-facto marriages) of the cases under Article 2 (1) 3 and 4 of the Framework Act on the Liquidation of Past History for Truth and Reconciliation: collective deaths, injuries, and missing of civilians unlawfully committed between August 15, 1945 and before and after the Korean War, and the deaths, injuries, and missing of persons caused by unlawful or seriously unjust use of government power, including the destruction of the constitutional order, between August 15, 1945 and the period under the authoritarian regime; and other serious human rights violations and suspected fabrications. As for proof of damage, the liability for reparation in state violence cases need to be widely recognized by applying the provisions on the presumption of causality between tortious acts and damage and the shift of burden of proof. Lastly, the State Violence Reparation Act needs to include a clear provision that the statute of limitation does not apply to damages claims under the Civil Act or the State Compensation Act held by victims who suffered death, physical damage, property damage, or mental damage in cases to which this Act applies.

The proposed Act offers the benefit of clarifying the state’s liability to provide reparation to victims and surviving families of historical justice cases involving state violence, offering clear and uniform guidelines for financial reparation, and achieving reparative justice in meaningful ways through a victim-centric relief model.