Claim period for compensation after a dismissal ruling becomes final

1. 01Question

   When a defendant whose dismissal or acquittal ruling has become final claims compensation for detention on the ground that, absent the reason for that dismissal or acquittal, there would have been notable grounds for an acquittal, does the claim period run from the finality of that ruling, or from the moment the notable grounds arose after it?

2. 02Holding

   In principle the claim must be made within three years of learning that the dismissal or acquittal ruling has become final and within five years of that finality. Where, however, the notable grounds for an acquittal arose only after that finality, as where the penal provision concerned was later held unconstitutional and void, the period runs instead from learning of that new ground and from its arising. Because the Supreme Court declared Emergency Measure No. 9 unconstitutional and void only in its en banc decision of 18 April 2013, the applicant's claim filed on 27 June 2019 was out of time.

   Summary of the holding, verbatim

   다만 면소 또는 공소기각의 재판이 확정된 이후에 비로소 해당 형벌법령에 대하여 위헌·무효 판단이 있는 경우 등과 같이 면소 또는 공소기각의 재판이 확정된 이후에 무죄재판을 받을 만한 현저한 사유가 생겼다고 볼 수 있는 경우에는 해당 사유가 발생한 사실을 안 날부터 3년, 해당 사유가 발생한 때부터 5년 이내에 보상청구를 할 수 있다.

   Unofficial English translation

   However, where it may be regarded that a manifest ground for receiving a judgment of not guilty arose after a judgment terminating prosecution on statutory grounds (myeonso) or a dismissal of prosecution became final and conclusive, such as where a determination that the relevant penal statute is unconstitutional and void was made only after the judgment of myeonso or dismissal of prosecution became final and conclusive, a claim for compensation may be filed within 3 years from the date of learning of the fact that such ground has arisen, and within 5 years from the time when such ground arose.

3. 03Disposition

   Dismissed Stated in the decision

   재항고를 기각한다.

   Unofficial English translation

   The re-appeal is dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   다만 면소 또는 공소기각의 재판이 확정된 이후에 비로소 해당 형벌법령에 대하여 위헌·무효 판단이 있는 경우 등과 같이 면소 또는 공소기각의 재판이 확정된 이후에 무죄재판을 받을 만한 현저한 사유가 생겼다고 볼 수 있는 경우에는 해당 사유가 발생한 사실을 안 날부터 3년, 해당 사유가 발생한 때부터 5년 이내에 보상청구를 할 수 있다.

   Unofficial English translation

   However, where it may be regarded that a manifest ground for receiving a judgment of not guilty arose after a judgment terminating prosecution on statutory grounds (myeonso) or a dismissal of prosecution became final and conclusive, such as where a determination that the relevant penal statute is unconstitutional and void was made only after the judgment of myeonso or dismissal of prosecution became final and conclusive, a claim for compensation may be filed within 3 years from the date of learning of the fact that such ground has arisen, and within 5 years from the time when such ground arose.

5. 05Factors

   • 형사소송법에 따라 면소 또는 공소기각의 재판을 받아 확정된 피고인이 면소 또는 공소기각의 재판을 할 만한 사유가 없었더라면 무죄재판을 받을 만한 현저한 사유가 있었을 경우
   • 보상청구는 면소 또는 공소기각의 재판이 확정된 사실을 안 날부터 3년, 면소 또는 공소기각의 재판이 확정된 때부터 5년 이내에 하는 것이 원칙이다
   • 면소 또는 공소기각의 재판이 확정된 이후에 비로소 해당 형벌법령에 대하여 위헌·무효 판단이 있는 경우 등과 같이
   • 원결정 확정 이후에 대법원이 긴급조치 제9호에 대하여 위헌·무효라고 선언함으로써 비로소 재항고인에게 공소기각의 사유가 없었더라면 무죄재판을 받을 만한 현저한 사유가 생겼다고 볼 수 있으므로

   Unofficial English translation

   • Where a defendant whose judgment terminating prosecution on statutory grounds (myeonso) or dismissal of prosecution has become final and conclusive under the Criminal Procedure Act had a manifest ground for receiving a judgment of not guilty, had there been no ground warranting a judgment of myeonso or dismissal of prosecution

   • As a rule, a claim for compensation must be filed within 3 years from the date of learning of the fact that the judgment of myeonso or dismissal of prosecution has become final and conclusive, and within 5 years from the time when such judgment became final and conclusive

   • such as where a determination that the relevant penal statute is unconstitutional and void was made only after the judgment of myeonso or dismissal of prosecution became final and conclusive,

   • as it may be regarded that a manifest ground for receiving a judgment of not guilty, had the ground for the dismissal of prosecution not existed, arose only when the Supreme Court declared Emergency Measure No. 9 unconstitutional and void after the original ruling became final and conclusive,

6. 06Relation to precedent

   Changes earlier decisions Stated in the decision

   대법원은 구 대한민국헌법(1980. 10. 27. 헌법 제9호로 전부 개정되기 전의 것) 제53조에 근거하여 발령된 긴급조치 제9호가 합헌이라는 취지로 판단한 종래 판례의 입장을 변경하여

   Unofficial English translation

   The Supreme Court changed its position in the previous precedents, which had held Presidential Emergency Measure No. 9, issued on the basis of Article 53 of the former Constitution of the Republic of Korea (as it existed before the complete amendment thereof by Constitutional Act No. 9 on October 27, 1980), to be constitutional, and

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Besides a later declaration that the penal provision is unconstitutional and void, what other circumstances count as notable grounds for an acquittal that arose only after the dismissal or acquittal ruling became final?

   An amendment to Article 8 or Article 26(1)(i) and (2) of the Act on Criminal Compensation and Restoration of Honour that alters the three-year or five-year period would require this entry to be read again. So would a later Supreme Court decision accepting a category of post-finality grounds beyond an unconstitutionality ruling, or a new finding on when this applicant actually learned of the en banc decision of 18 April 2013.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.