[손해배상(기)등][미간행]
In a case where Gap et al., who were forced mobilization during the Japanese occupation period and were engaged in forced labor at the old Military Industries Co., Ltd. filed a claim for consolation money against the newly established yet the company was dissolved, the case affirming the judgment of the court below that approval of the final judgment against Gap et al. against the deceased Heavy Industries Co., Ltd. was not valid since it violated the good morals and other social order of the Republic of Korea, and Gap et al. can exercise the right to consolation money against the old deceased Heavy Industries Co., Ltd., and the right to consolation money such as Gap et al. can not be deemed to be included in the application of the "Agreement on the resolution of problems concerning Property and Claims between the Republic of Korea and Japan", and it cannot be allowed as abuse of rights against the principle of good faith to refuse the performance of obligations against Gap et al. by asserting the expiration of the extinctive prescription period.
Article 217 subparag. 3 of the Civil Procedure Act; Articles 2, 166(1), 751, and 766 of the Civil Act; Articles 1 and 2 of the Agreement on Economic Cooperation and the Settlement of Economic Cooperation concerning Property and Claims between the Republic of Korea and Japan
The deceased non-party 1’s taking-off of the lawsuit and 22 others (Law Firm subordinate, et al., Counsel for the plaintiff-appellant)
[Defendant-Appellant] Heavy Industries Co., Ltd. (Attorney Kim Yong-sik et al., Counsel for defendant-appellant)
Supreme Court Decision 2009Da22549 Decided May 24, 2012
Busan High Court Decision 2012Na4497 decided July 30, 2013
All appeals are dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Regarding ground of appeal No. 1
After remanding for the reasons indicated in its reasoning, the lower court determined that approving the Japanese judgment of this case, which contains the reasons for such judgment, violates the good customs or other social order of the Republic of Korea, and thus, cannot be recognized by approving the Japanese judgment of this case, even though the deceased non-party 1, the deceased non-party 2, the deceased non-party 3, the deceased non-party 4, and the deceased non-party 4 (hereinafter collectively referred to as "the plaintiff et al.") filed a lawsuit against the defendant in Japan prior to the lawsuit of this case, and lost and decided by the Japanese judgment of this case.
The judgment of the court below after remanding the case is in accordance with the purport of the judgment of remand, and there is no error in the misapprehension of legal principles as to the violation of the public order and good morals as the requirements for foreign judgment approval.
2. Regarding ground of appeal No. 2
After remanding for the reasons indicated in its holding, the lower court determined that the Plaintiffs may also exercise the right to claim the instant case against the Defendant, even if the Plaintiff, etc. was dissolved in accordance with Japanese law, and the “Second Company” in its holding was established and followed the process of merger and alteration of the Defendant, etc., following the merger process.
The judgment of the court below after remand also is in accordance with the purport of the judgment of remand, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the violation of public order and good morals.
3. Regarding ground of appeal No. 3
After remanding, the lower court determined that, on the grounds indicated in its reasoning, the Plaintiffs’ claim for damages cannot be deemed to have been included in the subject matter of the Agreement on Claim for Damages on the premise that the Plaintiffs’ claim for damages is a claim for consolation money against Japanese companies, which were directly connected to the Japanese government’s illegal control over the Korean Peninsula and the implementation of a war of aggression, based on the premise that the victims’ forced mobilization’s claim for consolation money was based on an anti-human act committed by Japan
The judgment of the court below after remand also is in accordance with the purport of the judgment of remanding, and even if the newly presented evidence is added to the evidence after remanding, there is no error of law by misapprehending the legal principles as to the subject and validity of the agreement on claims, as otherwise alleged in the
Meanwhile, the defendant alleged in the ground of appeal that, on the premise that the above claim for consolation money is included in the scope of the application of the Agreement on Claim, the right waivered by the Agreement on Claim is not limited to the diplomatic protection of the country, but the right to claim consolation money itself has been renounced. However, this part is about the judgment of the court below after remand, and it cannot be accepted without further review.
4. Regarding ground of appeal No. 4
After remanding the case, the lower court determined that: (a) it is reasonable to view that there was an obstacle that the Plaintiffs could not exercise rights objectively against the Defendant in the Republic of Korea, even at the time of the filing of the instant lawsuit, on the grounds stated in its reasoning, inasmuch as the view that the agreement on the right of claims was concluded in a normal manner between Korea and Japan in 1965, but all documents related to the right of claims were not disclosed, and that there was an obstacle that the Plaintiffs could not exercise rights objectively against the Defendant in the Republic of Korea; (b) accordingly, the Defendant’s refusal of the performance of obligations against the Plaintiffs by asserting the completion
The judgment of the court below after remand also follows the purport of the judgment remanded, and there is no error of law by misapprehending the legal principles as to the extinctive prescription as otherwise alleged in the grounds of appeal.
5. Regarding ground of appeal No. 5
The amount of consolation money for mental suffering caused by tort can be determined by the fact-finding court at its own discretion in consideration of all the circumstances (see Supreme Court Decision 98Da41377 delivered on April 23, 199, etc.).
After remanding, the lower court determined consolation money to the Plaintiffs as the amount of judgment. Examining the reasoning of the lower judgment in light of the records, the lower court did not err in its judgment as to this part of the judgment, contrary to what is alleged in the grounds of appeal.
6. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Jae-chul (Presiding Justice)