[2014Hun-Ba148, etc. (consolidated), August 30, 2018] * First Draft

In this case, the Constitutional Court held that, as to the past incidents concerning the “civilian massacres” and “grave human rights abuses and fabricated trials”, applying a period of extinctive prescription which starts to run from an objective starting point, to the right to claim for damages of the victims of illegal acts committed by the State, infringes upon the right to claim for state compensation and thus violates the Constitution.

Background of the Case

Some of the petitioners are persons who were sentenced to imprisonment during 1982 and 1986 for criminal offences including violation of the National Security Act, and their families and inheritors. These petitioners were found to be victims of the abovementioned past incidents by the Truth and Reconciliation Commission, Republic of Korea (“the Commission”), which was established under the Framework Act on Clearing up Past Incidents for Truth and Reconciliation (“the Framework Act”) enacted in 2005. The initial convictions were overturned in retrials thereafter, and the above petitioners were acquitted accordingly.

Other petitioners include inheritors of the victims who were apprehended by the police, etc. and lost their lives during the Bodo League Massacre in 1950, and inheritors of the victims who died during the shore bombardment by the U.S. forces. These petitioners were found to be victims of the aforesaid past incidents by the Commission.

After the Commission’s decisions, all petitioners filed lawsuits in courts against the Republic of Korea to claim damages, and while their proceedings were pending, they filed motions to request a constitutional review of the provision on extinctive prescription. Upon rejection or dismissal of such motions, the petitioners filed a constitutional complaint pursuant to Article 68 Section 2 of the Constitutional Court Act.

Subject Matter of Review

The Framework Act, the purpose of which is to reconcile with the past and thus to

move towards the future by investigating and revealing the truth behind human rights violations, and violent incidents and massacre committed through acts against democracy and humanity (Article 1), stipulates that the following two incidents shall be subject to investigation: the “civilian massacres”, which occurred prior to and after the Korean War (Article 2 Section 1 Item 3), and the “grave human rights abuses and fabricated trials”, which took place during the rule of authoritarian regimes (Article 2 Section 1 Item 4). The petitioners fall under either the victims of the civilian massacres prescribed in Article 2 Section 1 Item 3 of the Framework Act, or the victims of the grave human rights abuses and fabricated trials prescribed in Article 2 Section 1 Item 4 of the same Act.

The subject matter of review in this case is whether Article 166 Section 1 and Article 766 of the Civil Act, Article 96 Section 2 of the National Finance Act, and Article 96 Section 2 of the former Budget and Accounts Act (“the Instant Provisions”) violate the Constitution.

Summary of the Decision

1. Issue

While Article 23 of the Constitution defines the right of property of all citizens in general, Article 28 and Article 29 Section 1 of the Constitution prescribe the right of all citizens to claim for criminal compensation and state compensation as special provisions to Article 23. The purpose of the two special provisions is to reinforce protection of relevant fundamental rights by guaranteeing a constitutional remedy for citizens whose right to physical freedom and other rights have been infringed by the State’s criminal justice system and exercise of power.

Since Article 28 and Article 29 Section 1 of the Constitution provide that the terms regarding the right to claim for criminal compensation and state compensation shall be prescribed by law, determining the specific content of such terms thereof is at the discretion of the legislature. Yet, such legislation should not be limited to merely granting a procedural right to claim for compensation or allowing a theoretical possibility to claim for compensation; it should significantly guarantee an effective remedy for violation of the rights of citizens.

In principle, the legislature is entrusted with deciding on the starting point of computing

extinctive prescription and the period of prescription. However, it goes beyond the limits of legislative discretion and is considered unconstitutional when a prescription period is extremely short or it starts to run from an unreasonable date, thus seriously impeding or making it practically impossible to claim for state compensation.

2. Constitutionality of the Instant Provisions in principle

As prescribed by Article 8 of the National Compensation Act, the Instant Provisions set out that, regarding the extinctive prescription of the right to claim for state compensation, a “short prescription period” of three years (Article 766 Section 1 of the Civil Act) shall elapse from the “subjective starting point”, date on which the injured party or his/her legal representative becomes aware of such damage and of the identity of the person who caused it (Article 766 Section 1 of the Civil Act); and a “long prescription period” of five years (Article 96 Section 2 of the National Finance Act and Article 96 Section 2 of the former Budget and Accounts Act) shall elapse from the “objective starting point”, date on which the unlawful act was committed (Article 166 Section 1 and Article 766 Section 2 of the Civil Act).

Generally, the purpose of extinctive prescription governed by the Civil Act is (1) to ensure legal stability; (2) to prevent the debtor from repeatedly repaying his/her debt; and (3) to sanction the non-exercise of rights by the creditor and to protect the legitimate trust held by the debtor. Such purposes of the extinctive prescription in the Civil Act are mostly valid for the right to claim for state compensation as well; a short prescription period, in particular, is needed to identify liabilities of the State at an early stage and to remove the instability of budgeting accordingly. Therefore, it is reasonable to stipulate in the Instant Provisions the starting points and periods of extinctive prescription regarding the right to claim for state compensation of the persons harmed by a general unlawful act committed by public officials performing their public duties.

3. Exceptional unconstitutionality of applying Article 166 Section 1 and Article 766 Section 2 of the Civil Act to the incidents stipulated in Article 2 Section 1 Items 3 and 4 of the Framework Act

Even if there are reasonable grounds for applying the starting points of prescription and periods of extinctive prescription to the general right to claim for state compensation,

directly applying an objective starting point under Article 166 Section 1 and Article 766 Section 2 of the Civil Act to the incidents concerning the civilian massacres in Article 2 Section 1 Item 3 of the Framework Act and the grave human rights abuses and fabricated trials in Article 2 Section 1 Item 4 of the same Act, without considering the distinct nature of the incidents, exceeds the limits of legislative discretion for the reason stated below.

As to the incidents involving the civilian massacres and the grave human rights abuses and fabricated trials, state agencies and their public officials falsely accused citizens through unlawful acts in a systematic manner and fabricated and concealed evidence afterwards. Hence, the truth behind the said incidents was impossible to uncover for a long time, and this gave rise to problems that are difficult to resolve reasonably through the general legal principle of extinctive prescription. Thereupon, in 2005, the ruling and opposition parties agreed to enact the Framework Act, and given the background and purpose of this legislation, the foregoing incidents are subject to a type which is fundamentally different from the incidents concerning the “illegal acts between private persons” or “state compensation in general”.

For the reason stated above, it is not appropriate to apply the general extinctive prescription to the type of two incidents provided in the Framework Act. Since the State apparently has not paid compensation to the victims of this type of incidents so far, the legislative purpose of the extinctive prescription “to prevent the debtor from repeatedly repaying his/her debt” does not serve as a ground for limiting the right to claim for state compensation (see (2) above). In addition, since the State committed illegal acts through mobilization of public officials and, for a long time, undermined the rights of victims through fabrication and concealment of evidence, the legislative purpose of a prescription period “to sanction the non-exercise of rights by the creditor and to protect the legitimate trust of the debtor” does not constitute a ground for restricting the right to claim for state compensation as well (see (3) above). Consequently, this leaves only the purpose of “legal stability” to be examined for this type of incidents. However, considering that the purpose of the right to claim for state compensation, a special fundamental right guaranteed under Article 29 Section 1 of the Constitution, is not simply limited to safeguarding the right of property but to provide a post-remedy for the citizens who have been harmed by the illegal acts committed by the very State, who has a duty to protect fundamental rights of its citizens pursuant to the second sentence of Article 10 of the Constitution, it is difficult to find that the importance of protecting legal stability through extinctive prescription to the right to claim for state

compensation completely outweighs the “obligation of the State to protect fundamental rights” under Article 10 of the Constitution and the “necessity to guarantee the right to claim for state compensation” under Article 29 Section 1 of the Constitution (see (1) above).

When examined in detail, there is a reasonable ground to apply a subjective starting point under Article 766 Section 1 of the Civil Act to the incidents stipulated in Article 2 Section 1 Items 3 and 4 of the Framework Act, since the intention of requiring a victim of an illegal act to file a claim for state compensation within three years “from the date on which the injured party or his/her legal representative becomes aware of such damage and of the identity of the person who caused it” is to promote balance in protecting the victim and offender.

However, computing the extinctive prescription period from the date on which an unlawful act was committed regardless of the fact that the State harmed a large number of civilians illegally through mobilization of public officials in a systematic manner; or that guilty verdicts were rendered based on false confessions induced under long-term illegal detention and torture; and that the State afterwards continued to impede truth-seeking processes through fabrication and concealment of evidence, hardly promotes balance in safeguarding the victim and offender, nor does this comply with the guiding principle of the compensation system, which is equitable and reasonable apportionment of damages occurred.

Consequently, applying the objective starting point under Article 166 Section 1 and Article 766 Section 2 of the Civil Act to the incidents concerning the civilian massacres and the grave human rights abuses and fabricated trials respectively stated in Article 2 Section 1 Items 3 and 4 of the Framework Act is tantamount to, without reasonable cause, neglecting the necessity to guarantee the right to claim for state compensation for the foregoing type of incidents by overemphasizing legal stability and protection of the offender. This crosses the limits of legislative discretion and thus violates the right of the petitioners to claim for state compensation.

4. Conclusion

In conclusion, the parts in Article 166 Section 1 and Article 766 Section 2 of the Civil Act, which are applicable to the cases specified in Article 2 Section 1 Items 3 and 4 of the Framework Act, violate the Constitution; and Article 766 Section 1 of the Civil

Act, Article 96 Section 2 of the National Finance Act, and Article 96 Section 2 of the former Budget and Account Act do not violate the Constitution.

Summary of Dissenting Opinion of Three Justices

The essence of the petitioners’ argument is that the civilian massacres and the grave human rights abuses and fabricated trials under the Framework Act constitute grave human rights violations committed by the State power and thus have a unique nature different from other cases on the general right to claim for compensation; hence, the Instant Provisions, general provisions concerning extinctive prescription, should not be applied to the incidents provided in the Framework Act. In other words, the petitioners argue that the provisions on extinctive prescription should not apply to such incidents as the civilian massacres and the grave human rights abuses and fabricated trials where there are special circumstances in which it is impossible to expect that a right can be exercised before completion of extinctive prescription as there is a de facto impediment objectively preventing the exercise of such right, or that the running of extinctive prescription should be tolled until an acquittal has been concluded in a retrial. However, this amounts to nothing more than claiming that the interpretation and application of law by the Supreme Court or lower courts that heard the petitioners’ cases, counter to the petitioners’ arguments, was wrong and such construction of law infringes upon the right of property of the petitioners and therefore is in violation of the Constitution. Simply put, the petitioners did not request this Court to review the constitutionality of the Instant Provisions per se but sought to argue against the assessment of the facts underlying this case or to dispute the courts’ interpretation and application concerning the simple subsumption and application of provisions in individual and specific cases or the outcome of trial. Therefore, in view of the purpose of Article 68 Section 1 of the Constitutional Court Act, which prohibits reviewing the constitutionality of the court’s judgment, this constitutional complaint is non-justiciable.

*This translation is provisional and subject to revision.

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