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(영문) 대법원 2014. 3. 13. 선고 2012다45603 판결

[국가배상][공2014상,834]

Main Issues

Where a person related to democratization movements prescribed in the Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movements has consented to the decision of the Compensation Deliberation Committee to restore Honor of Persons Related to Democratization Movements and has received compensation, etc., the extent that the establishment of a judicial compromise is recognized pursuant to Article 18 (2) of the same Act.

Summary of Judgment

In addition to the legislative purport of the Act on the Honor Restoration, Compensation, etc. of Persons Related to Democratization Movement (hereinafter “Act on the Compensation for Democratization Movement”), the relevant provisions, the consent prepared and submitted by the applicant, and the details of the written claim, in particular, where the legislative purpose of Article 18(2) of the Act on the Compensation for Democratization Movement has consented to the decision of payment of compensation, medical subsidies, living allowances (hereinafter “compensation, etc.”), such effect as judicial reconciliation, in particular as granting res judicata, is to promptly terminate and implement the decision through the procedure for the decision of payment, such as the compensation, etc. of the person related to Democratization Movement (hereinafter “Compensation Deliberation Committee”) prior to the lawsuit, and to grant stability in the decision of payment such as compensation, etc., in full view of the fact that the applicant does not clearly determine that part of the content applied by the Compensation Deliberation Committee does not fall under the requirements of a person related to Democratization Movement under the Act on the Compensation for Democratization Movement, the same effect as the Civil Procedure Act shall arise in relation to the damage suffered by the applicant, including compensation, etc. paid pursuant to Article 18(2) of the Democratization Compensation Act.

[Reference Provisions]

Article 18 (2) of the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movement, Etc.

Plaintiff-Appellant

Plaintiff 1 and 22 others (Attorney Kim Jae-sik, Counsel for the plaintiff-appellant)

Plaintiff-Appellant-Appellee

Plaintiff 10 and one other

Defendant-Appellee-Appellant

Republic of Korea (Attorney Seo Young-young et al., Counsel for the defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 2011Na91229 decided May 3, 2012

Text

1. A. Of the judgment of the court below, the part of the claim for consolation money due to interference with employment by the plaintiff 6 and 7's boom preparation and management is reversed, and that part of the case is remanded to the Seoul High Court.

B. The remaining appeals by Plaintiffs 6 and 7 are dismissed.

2. All remaining plaintiffs' appeals and the defendant's appeals against plaintiffs 10 and 22 are dismissed.

3. The costs of appeal between the plaintiffs 10, 22 and the defendant are assessed against each party, while the remaining costs of appeal between the plaintiffs and the defendant except the plaintiffs 6, 7, 10, and 22 are assessed against the remaining plaintiffs.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by the plaintiffs other than the plaintiffs 10 and 22

A. (1) Article 1 of the Act on the Restoration of Honor and Compensation to Persons Related to Democratization Movements (hereinafter “Act on the Compensation of Democratization Movements”) provides that “The purpose of this Act is to promote their livelihood stability and welfare by having persons who have sacrificed in relation to democratization movements and their bereaved family members restore their honor and compensate, and contribute to the development of democracy and national harmony.” Article 2 subparag. 1 of the Act provides that “divatization movements shall be deemed to have violated the basic order of democracy since March 24, 1964, which violates the Constitution, and shall resist to the authoritative rule that infringes on the fundamental rights of the people guaranteed by the Constitution, thereby contributing to the realization of ideology and values pursued by the Constitution, the establishment of democratic constitutional order, and the restoration and extension of the freedom and rights of the people” and the main sentence of subparagraph 2 provides that “the persons related to democratization movements shall be deemed to have agreed to receive compensation in accordance with the provisions of Article 4 of the Act on the Compensation of Democratization Movements and their bereaved family members, and shall be deemed to have been determined by the Commission or shall be determined to receive compensation for illness:

In addition, Article 20 of the Enforcement Decree of the Democratization Movement Compensation Act provides that "where an applicant who has received a written decision on compensation, a written decision on the payment of living subsidies or a written decision on the restoration of honor intends to receive compensation, etc., he/she shall submit to the Committee a written consent and written application in attached Form 10 stating the following matters, along with one copy of the written decision on compensation, a written decision on the payment of living subsidies or a written decision on the restoration of honor, and one copy of the applicant's certificate of personal seal impression," and that "the purport that the applicant consents to the decision on compensation and claims the payment of compensation, etc." is stated in attached Form 10 of the Enforcement Decree of the Act, and the consent and written application in attached Form

(2) Further to the legislative purport of the Act on the Compensation for Democratization Movement, the contents of relevant regulations, the consent prepared and submitted by the applicant, and the contents of the written claim, in particular, when the legislative purpose of Article 18(2) of the Act on the Compensation for Democratization Movement is to promptly terminate and implement the same effect as judicial reconciliation in cases where the applicant consented to the determination of payment of compensation, etc. by granting res judicata, in particular, prior to the litigation, through the procedures for the determination of payment such as compensation by the Compensation Deliberation Committee prior to the litigation, and to ensure stability in the determination of payment such as compensation, etc., the Compensation Deliberation Committee did not explicitly decide that part of the content requested by the applicant does not fall under the requirements of the Act on the Compensation for Democratization Movement. Thus, if the applicant consented to the determination of the Compensation Deliberation Committee on the Compensation for Democratization Movement, the same effect as the judicial reconciliation under the Civil Procedure Act shall be established as to all the damage suffered in relation to the democratization movement, including consolation money

B. (1) According to the reasoning of the lower judgment and the record, ① Police Officers of the Incheon East Police Agency did not receive the Plaintiffs’ daily compensation subsidy from 00 on July 23, 1976, and obstructed the activities of labor unions by arresting the core materials of the enforcement body of the labor union without warrant on July 23, 1976, and preventing them from participating in the Games. On February 23, 1978, the representative of the labor union, at around 06:00, other members were removed from 120 members including the Plaintiffs from office under the direction of the Central Information Division on April 1, 1978, as well as 100 members of the Seoul East Police Agency’s daily compensation support fund from 100 and the list of the Plaintiffs’ daily workers, including the Plaintiffs, was found to have been included in the same list of employment promotion support fund from 200 and 1600 members of the Employment Movement Act.

(2) The following circumstances revealed in light of the above facts and records, namely, ① the acts of interference with and coercion of the above trade union activities of the defendant, and interference with employment due to the preparation and management of a black list are already occurred before the above plaintiffs were paid living allowances. ② The reasons why the defendant-affiliated organization formed, managed, and distributed a black list against union members are to manage the dismissed union members and to make their reemployment difficult. The above acts can be seen as having a very close relation with the extension of the "defluence on the ground of democratization movement," which is the reason recognized as a person related to democratization movement. ③ Since the period of dismissal due to democratization movement and the period of removal from employment due to the acts of interference with employment after the democratization movement overlap, barring special circumstances, it is reasonable to view the applicant as receiving compensation, etc. in light of the above legal activities of the defendant's trade union and forced democratization movement and the reasons why the above plaintiffs suffered damage due to the above plaintiffs' acts such as the preparation and management of a black list, etc. are the same as the compensation fund of Article 18 of the Trade Union Act.

C. (1) In the same purport, the court below was just in holding that the lawsuit of this case where the plaintiffs except the plaintiffs 6 and 7 among the plaintiffs receiving living allowances and the defendant filed a judicial compromise under the provisions of the Civil Procedure Act with respect to the damages incurred in relation to democratization movements pursuant to the above provisions of the Civil Procedure Act, and that the lawsuit of this case where the plaintiffs except the plaintiffs 6 and 7 among the plaintiffs receiving living allowances claim consolation money again for the damages suffered in relation to democratization movements is unlawful since there is no benefit of protection of rights, and there was no error in the misapprehension of legal principles as to the scope of validity of

(2) However, in light of the legal principles as seen earlier, with respect to Plaintiffs 6 and 7, the Compensation Deliberation Committee’s decision that did not recognize the part of the opportunity for re-employment as a person related to democratization movements explicitly in the process of preparing and distributing a black list, and, inasmuch as living allowances were paid based thereon, the effect of the judicial compromise by Plaintiffs 6 and 7 cannot be deemed to extend to the claim for consolation money due to interference with employment caused by the preparation and management of a black list.

Nevertheless, the court below erred by misapprehending the legal principles as to the scope of validity of Article 18(2) of the Act on the Compensation for Democratization Movement, which held that the above part of the claim for consolation money by plaintiffs 6 and 7 has the effect of judicial compromise.

D. Meanwhile, the plaintiffs' assertion that the above reconciliation constitutes an unfair legal act or should be revoked by mistake is a new argument that is only the first time in the final appeal, and it cannot be a legitimate ground for appeal.

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

A. In a case where the State received an application to verify the truth of a victim who is subject to the application of the Framework Act on the Settlement of History for Truth and Reconciliation and conducted a truth-finding decision that confirmed or presumed the victim as a victim, it is reasonable to deem that there exist special circumstances where the victim exercises his/her right within a considerable period of time based on such decision that the Defendant would not claim the extinguishment of right due to the completion of extinctive prescription, and thus, the State’s assertion for the completion of extinctive prescription is not permissible as it constitutes an abuse of rights against the principle of trust and good faith. Furthermore, the term “reasonable period” in the exercise of the above rights is limited to a short period of time corresponding to the suspension of prescription under the Civil Act, barring any special circumstances. In a case of a claim for damages due to a tort, the period is limited to three years, which is the short-term period of extinctive prescription under Article 766(1) of the Civil Act (see, e.g., Supreme Court en banc Decision 2012Da202819, May 13).

B. According to the reasoning of the judgment below and the record, the court below found the following facts: (a) on June 30, 2010, the Court affirmed the truth-finding on the case related to the same worker labor union; and (b) on December 6, 2010, the Plaintiff 10 and 22 filed a lawsuit claiming damages of this case within six months thereafter. Thus, it is reasonable to deem that the above Plaintiffs filed a lawsuit claiming damages of this case within a reasonable period after the court’s findings of fact-finding. Thus, the Defendant’s assertion that the statute of limitations expired is an abuse of rights and thus, cannot

C. Although there is no inappropriate point in this part of the judgment of the court below, it is just in its conclusion to reject the defendant's assertion on the ground that the defendant's assertion on the completion of extinctive prescription against the above plaintiffs constitutes an abuse of rights against the principle of good faith and thus it is not permissible. In so doing, it did not err by

3. As to Plaintiff 10 and 22’s grounds of appeal and Defendant’s ground of appeal No. 2

The amount of consolation money for mental suffering caused by a tort may be determined at the discretion of the fact-finding court in consideration of various circumstances (see Supreme Court Decision 2002Da43165, Nov. 26, 2002, etc.).

The lower court determined the amount of consolation money for Plaintiffs 10 and 22, taking into account the various circumstances shown in the pleadings of the instant case, such as the content and degree of the Defendant’s tort, the time when the tort was committed, and the present interval.

Examining the records in light of the above legal principles, we affirm the above measures of the court below as just, and there were no errors by misapprehending the legal principles on the calculation of consolation money.

4. Conclusion

Therefore, among the judgment of the court below, the part of the claim for consolation money due to the interference with employment by the plaintiff 6 and 7's boom preparation and management is reversed, and this part of the case is remanded to the court below. The remaining appeals by the plaintiff 6 and 7 and all appeals by the plaintiffs 10 and 22 are dismissed, and the remaining appeals by the plaintiffs 10 and 22 are all dismissed. The costs of appeal except for the appeals by the plaintiff 6 and 7 are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Park Poe-young (Presiding Justice)

본문참조조문