[2] In a case where Japan claimed the State compensation for damage caused by illegal performance of duties by public officials belonging to the Republic of Korea, the case holding that there exists a mutual guarantee under Article 7 of the State Compensation Act between Korea and Japan

[2] The case holding that Article 7 of the State Compensation Act exists between Korea and Japan in light of the fact that Articles 1 (1) and 6 of the Japanese State Compensation Act provide the same contents as the Korean State Compensation Act concerning the requirements for the occurrence of the State compensation claim and the mutual guarantee of the State compensation claim, in case where Japan claimed the State compensation for damages caused by illegal performance of duties by public officials belonging to the Republic of Korea

1. As to the Defendant’s first ground of appeal

Article 7 of the State Compensation Act requires “where a foreigner is a victim, there shall be mutual guarantee with the relevant country” as the requisite for the occurrence of a claim for State compensation against a foreigner in order to prevent any disadvantage that Korea may sustain and promote equity in international relations. Considering that the pertinent country’s requirement for the occurrence of State compensation claims against a foreigner is too limited to that of Korea, and that it does not go against today’s reality where international exchange is frequent and that unreasonable result may bring about an unreasonable result that allows a foreigner to refuse to protect Korean nationals in foreign countries, it is reasonable to deem that the requirements for State compensation claim do not lose balance between Korea and foreign countries, and that the requirements for the establishment of State compensation claim do not differ substantially in important points because the requirements prescribed in foreign countries are not excessive than those determined in Korea, it is sufficient to recognize that mutual guarantee is concluded by comparison with the requirements that occur in foreign statutes, precedents, and custom, etc., and that a treaty with a party is not necessary, and that it is sufficient to recognize that the pertinent foreign country does not have concrete recognition of State compensation claims for 2013.

In light of the above legal principles and records, the plaintiff is Japan and has a mutual guarantee under Article 7 of the State Compensation Act of Korea in Japan to be subject to the State Compensation Act for damages caused by the illegal performance of duties by the public officials belonging to the defendant. Article 1 (1) of the State Compensation Act of Japan provides that "if a public official who exercises the public authority by the State or a public organization causes illegal damage to another person by intention or negligence in performing his duties, the State and the public organization shall be liable to compensate for it." Article 6 of the State Compensation Act provides that "This Act shall apply only when a foreigner is a victim." Article 6 of the State Compensation Act provides the same provision as the State Compensation Act of Korea with regard to the requirements for the occurrence of State compensation claims and mutual guarantee. Thus, the requirements for the occurrence of State compensation claims in Japan do not lose balance, and it is more important in that there is no substantial difference between Korea and Japan. In addition, in light of the above provision, it is reasonable to view that there is a mutual guarantee under Article 7 of the State Compensation Act between Korea and Japan.

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error of misapprehending the legal principles on mutual guarantee.

2. As to the defendant's second ground for appeal

In a case where the State received an application for ascertaining the truth of a victim who is subject to the Framework Act on the Settlement of History for Truth and Reconciliation and conducted a truth-finding decision that confirmed or presumed as a victim by the State under the State’s control of the State (hereinafter “The Committee for the Settlement of History”), it is reasonable to deem that there are special circumstances where the State at least would not assert the extinguishment of right due to the completion of extinctive prescription when the victim or his/her bereaved family exercises their rights within a reasonable period of time. Nevertheless, the State’s assertion of the completion of extinctive prescription against the victim constitutes abuse of rights against the principle of trust and good faith and thus is not permissible. In this case, “reasonable period” should be limited to a short period of time pursuant to the suspension of prescription under the Civil Act, barring any special circumstance, but it may be extended by up to three years where special circumstances exist in individual cases (see, e.g., Supreme Court en banc Decision 2012Da202819, May 16, 2013).

The reasoning of the judgment below reveals the following facts: (a) the Korean History Review Board, on July 23, 2010, rendered a truth-finding decision that the Plaintiff was unlawfully detained and cruel (hereinafter “the instant truth-finding decision”); and (b) the Plaintiff did not take any affirmative measures, such as legislation for restoring damage after the fact-finding decision of this case; and (c) filed the instant lawsuit on December 6, 201, which was three years after the date of the instant fact-finding decision, before the date of the instant fact-finding decision.

Examining these facts in light of the legal principles as seen earlier, the past history committee rendered the same trust that the Defendant did not invoke the benefit of extinctive prescription, and the Plaintiff filed a lawsuit claiming damages of this case within a reasonable period from the date of the truth-finding decision of this case. As such, the Defendant’s assertion on the completion of extinctive prescription against the Plaintiff’s claim for damages constitutes an abuse of rights against the principle of trust and good faith

Therefore, it is just that the court below rejected the defendant's defense of extinctive prescription as an abuse of rights against the principle of good faith, and there is no error in the misapprehension of legal principles as to the abuse of rights.

3. The plaintiff's ground of appeal concerning the amount of consolation money and the defendant's ground of appeal No. 3

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the amount of consolation money of this case recognized by the court below cannot be deemed to be undermining the principle of equity to the extent that it deviates from the limits of discretion of the fact-finding court. Thus, the court below did not err in the misapprehension of legal principles as to the calculation of consolation money

4. As to the Plaintiff’s assertion on damages for delay

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below is just in finding damages for delay due to the tort of this case as the date of the closing of argument at the court of fact-finding, and there is no error in the misapprehension of legal principles as to the starting date of damages for delay

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)