Transitional Justice in South Korea : Unconstitutionality and Illegality of Emergency Measures by Dictators

In South Korea, there have been too many and too diverse types of state violence to list, and innocent people have lost their lives or suffered irreparable damage as a result. The suffering of the victims of state crimes against human rights cannot be undone, and as Nobel laureate Han Kang wishes, we must forever remember the tragic history. However, from a legal perspective, we should say “goodbye” to the past as soon as possible to avoid repeating unfortunate cases. And to do so, it is imperative that the past faults are clearly corrected. Since the Korean Supreme Court consensus decision on August 30, 2022, the state's liability for damages to victims of emergency measures under the Yushin Constitution has been recognized, thus establishing the “tort of a series of state actions” theory of emergency measures. However, apart from the overall and systemic actions of the state, the proclamation of the state of emergency by the president at the time is a civil law tort against individual victims, and the court should clearly present this legal theory in the judgment. This would be the truth that the victims of past human rights violations have been seeking, and it would be a message of peace for us today.