손해배상(기)
2016Na56854 Claims for Damages
1. A;
2. B
Korea
Busan District Court Decision 2013Gahap15800 Decided September 21, 2016
March 9, 2017
April 6, 2017
1. All appeals filed by the plaintiffs are dismissed. 2. The costs of appeal are assessed against the plaintiffs.
The judgment of the first instance is revoked. The defendant shall pay to the plaintiff A 50 million won, 100 million won to the plaintiff B, and 100,000,000 won with 15% interest per annum from the day following the day of service of the copy of the application for modification of the claim of this case to the day of complete payment.
1. Quotation of the first instance judgment
The reasoning of this Court’s explanation in this case is as follows, since the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance except where any additional determination is added below, it shall be cited as it is pursuant
[Supplementary Judgment]
1. Plaintiff A
A. Summary of the assertion
On October 19, 1979, Plaintiff A was arrested on the charge of violating Emergency Decree No. 9 of the Emergency Decree, and the warrant of detention was issued on October 31, 1979 after 48 hours thereafter. The investigation, prosecution, and judgment at the time of the investigation, including being subject to harsh acts during the investigation process, constituted both torts, and was rendered a judgment of not guilty as a result of the retrial, and thus, the Defendant is obligated to compensate Plaintiff A for damages.
B. Determination
The following circumstances acknowledged by the evidence as follows: ① The decision to commence a new trial on the judgment subject to a new trial is merely based on Article 11(1) of the Act on the Restoration of and Compensation to Persons Related to Dem Democratic Defenses, and did not constitute grounds for a new trial under Article 420 subparag. 7 of the Criminal Procedure Act; ② The reason why the court rendered a verdict of innocence against the Plaintiff A in a new trial constitutes cases where the Emergency Measure No. 9, which is applicable law to the facts charged in the judgment subject to new trial, is null and void from the beginning to the unconstitutionality, and is not proved in the investigation process, or the fact that the public official in charge committed a crime related to the duties such as illegal arrest, detention, etc.; ③ The fact that the Plaintiff’s new trial ruling was not denied Emergency Measure No. 9 itself, but it is difficult to view that there was a high probability of innocence against the Plaintiff’s parties to a new trial, and there was no evidence as to the subsequent evidence as to the judgment subject to new trial.
Therefore, the plaintiff A's above assertion is without merit.
2. Plaintiff B
A. Summary of the assertion
Plaintiff B was arrested on October 20, 1979 on the charge of violation of Emergency Measure No. 9, and later issued a camping detention warrant on October 31, 1979, past 48 hours, and was issued on October 31, 1979, and was illegally arrested and detained for 36 days until the release according to the ruling of revocation of detention on November 24, 1979, and thus, the Defendant is liable to compensate Plaintiff B for damages due to the tort committed by the public officials belonging to the Defendant.
B. Determination
The claim for damages against the State caused by a tort shall expire three years after the victim becomes aware of the damage or the perpetrator, or five years after the date of the tort, as mentioned above.
The Plaintiff’s instant lawsuit is apparent in the record that Plaintiff B filed on September 11, 2013 after the lapse of 30 years from the time when Plaintiff B was released due to the revocation of detention. As such, Plaintiff B’s claim for damages against the Defendant was extinguished due to the lapse of the statute of limitations.
As to this, the plaintiff B asserts that the defendant's assertion for completion of prescription is not allowed as an abuse of rights against the principle of good faith.
However, in full view of the fact that Plaintiff B’s right to claim compensation for damages must be determined by the final judgment of not guilty through a request for retrial, it cannot be deemed that the existence of the right to claim compensation for damages or the identity of the perpetrator is not recognized, and that Plaintiff B was recognized as a person related to the side democracy dispute at the Committee for the Deliberation on the Restoration of Honorary Civil Aviation and that it is difficult to deem that the Defendant had had the Plaintiff B trusted the same attitude that the Defendant would not invoke prescription against Plaintiff B, it is difficult to view that the Defendant’s defense of extinctive prescription constitutes abuse of rights.
Ultimately, Plaintiff B’s assertion on this part is without merit.
2. Conclusion
Therefore, the judgment of the first instance is legitimate, and all appeals by the plaintiffs are dismissed.
Freeboard of the presiding judge and judge
Judge Lee Ro-hoon
Judge Maximum Financial Resources