[2] Where a claim for the completion of extinctive prescription is not permissible as an abuse of right

[2] If an obligor voluntarily made it impossible or considerably difficult for the obligee to exercise its rights or to interrupt prescription before the completion of prescription, and the obligee could not take such measures, it is not permissible for the obligor to assert the completion of extinctive prescription as an abuse of rights against the principle of good faith.

A. The court below acknowledged the following facts: (a) while the plaintiff was under protective custody in the protective custody center 2, he filed an application for writing to prepare various litigation documents, etc. on his unfair treatment; (b) the prison officer did not accept it as stated in its reasoning; (c) the officer’s act of appointing an attorney-at-law and notifying the plaintiff to the prosecution that the plaintiff would have been harshly committed by his mother during his meeting with his mother; and (c) the correctional officer's act of stopping the plaintiff’s interview was all unlawful; and (c) the court below determined that the defendant should compensate for mental damages suffered by the plaintiff due to the above unlawful acts committed by the correctional officer’s intentional or negligent act; and (d) the defendant’s defense claiming the expiration of the extinctive prescription period cannot be allowed as an abuse of rights against the principle of good faith.

B. In case of confinement of a convicted prisoner or a protective custody subject in a prison or a protective custody center, restrictions on other freedoms related to his/her physical activities in addition to restricting physical freedom in order to achieve the correctional purpose and maintain the correctional order are allowed as a supplement to the confinement measure. However, the restriction is allowed only to the extent that it is essential to achieve the above purpose, and whether the restriction is necessary or reasonable is determined by the comparison of the degree of necessity for restriction, the contents of the limited right or freedom, and the form of the specific restriction so decided. In this case, the provisions of the Enforcement Decree of the Criminal Administration Act or the working rules for safe custody, etc., which are not subject to specific delegation by law, can be reference for the determination of illegality, but in itself, it cannot be a legal basis for limiting the rights or freedom of the convicted prisoner or the protective custody subject, or a legal basis for determining whether the restriction is unlawful.

Examining the record in accordance with the above legal principles, in this case, a correctional officer’s act of not allowing the Plaintiff to write a book on the ground that the correctional officer asked the Plaintiff according to the duty rules for safe guard service but did not comply with this, and a correctional officer’s act of refusing the Plaintiff’s interview on the ground that a correctional officer told the Plaintiff during his mother’s meeting with his mother was not limited within the necessary and reasonable scope as to the Plaintiff’s freedom of writing and the right to interview with his family, which is a protective custody, in light of the above standards, cannot be deemed

Although the reasoning of the court below is somewhat insufficient, the conclusion that the above correctional officer's act was unlawful is just, and there is no error in the misapprehension of legal principles as to the freedom of writing and visitation right of the protective custody subject as otherwise alleged in the ground of appeal.

C. According to the evidence and records presented by the court below, it is recognized that the plaintiff suffered violence from a protective custody subject to the same charge due to a prison officer's neglect of safe custody, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the existence

D. If the obligor voluntarily made it impossible or considerably difficult for the obligee to exercise his right or to cancel the prescription before the completion of the prescription, and if the obligee could not take such measures, the obligor’s assertion for the completion of the extinctive prescription is not permissible as an abuse of right against the principle of good faith (see, e.g., Supreme Court Decisions 98Da42929, Dec. 7, 199; 2002Du1028, Mar. 28, 2003).

In light of the records, the court below is just in holding that the plaintiff's exercise of rights is an abuse of rights against the principle of good faith on the grounds that the defendant's exercise of rights became virtually impossible or considerably difficult by the prison officers belonging to the defendant, and there is no error of law by misunderstanding

E. On April 24, 2003, the Constitutional Court rendered a decision of unconstitutionality as to the portion of "interest rate prescribed by Presidential Decree" in the main text of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings before the Amendment (amended by Act No. 5507 of Jan. 13, 1998 and amended by Act No. 6868 of May 10, 2003; hereinafter referred to as "the former Promotion Act"), and thereafter, the amended provisions and the main text of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall apply to interest rate of 20% per annum after June 1, 2003, which affected the conclusion of the judgment by applying the interest rate of 25% per annum under the former Promotion Act.

2. Judgment on the Plaintiff’s appeal

The court below rejected the part of the claim asserted by the plaintiff from a correctional officer that the plaintiff was harsh and the part of the claim asserted by a correctional officer that the plaintiff infringed the plaintiff's right to trial as a result of the conclusion of agreement regarding the violence that the plaintiff suffered. In light of the records, the court below's finding and determination are just and there is no error of law of misunderstanding of facts as pointed out in the grounds of appeal

3. Therefore, the part of the judgment of the court below against the defendant as to damages for delay exceeding the following scope of recognition is reversed, and this part is sufficient to be judged directly by this court. The defendant is obligated to pay to the plaintiff the damages for delay at the rate of five percent per annum under the Civil Act from August 17, 1992 to May 31, 2003, and twenty percent per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the part of the judgment of the court of first instance ordering payment exceeding this limit shall be revoked, and the plaintiff's claim is dismissed. The plaintiff's appeal and the remainder of the defendant's appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)