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red_flag_2(영문) 서울고등법원 2012. 5. 3. 선고 2011나91229 판결

[국가배상][미간행]

Plaintiff, appellant and appellee

Plaintiff 1 and 21 others (Attorney Kim Jae-sik, Counsel for the plaintiff-appellant)

Defendant, Appellant and Appellant

Republic of Korea (Government Law Firm Corporation, Attorneys Kim Young-young, Counsel for defendant-appellant)

Conclusion of Pleadings

April 12, 2012

The first instance judgment

Seoul Central District Court Decision 2010Gahap124767 Decided October 7, 2011

Text

1. Of the judgment of the first instance, the part on the remaining plaintiffs except for plaintiffs 10 and 19 (including the deceased plaintiffs 11 and the deceased plaintiffs 16, respectively), shall be revoked, and all of the plaintiffs' lawsuits corresponding to that part shall be dismissed.

2. The defendant's appeal against the plaintiff 10 and 19 and the appeal against the plaintiff 10 and 19 are all dismissed.

3. The total cost of the lawsuit between the plaintiffs except the plaintiffs 10 and 19 and the defendant shall be borne by the remaining plaintiffs, and the cost of appeal between the plaintiffs 10, 19 and the defendant shall be borne by the respective plaintiffs.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiffs 50,000,000 won with 5% interest per annum from the delivery date of each complaint to the delivery date of the first instance judgment, and 20% interest per annum from the next day to the full payment date of each complaint.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiffs shall be revoked. The defendant shall pay to the plaintiffs 40,000,000 won with 5% per annum from September 23, 201 to the date of the original judgment, and 20% per annum from the next day to the date of full payment.

Defendant: The part against Defendant in the judgment of the first instance court is revoked, and all plaintiffs' claims corresponding to the revoked part are dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows: (a) the court’s order of February 23, 1978, “ February 21, 1978.” (b) No. 6 of the first instance court’s decision, “as of February 21, 1978.” (c) and the following additions to each of the 7th, 10th, and 12th, 7th, 18 through 12th, to the second end, are the same as the corresponding part of the judgment of the first instance court, and therefore, (d) the same shall be cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary Parts]

(Article 7, 10)

(f) Inheritance of property following the death of Plaintiffs 11 and 16 after the date of the closing of argument in the first instance court.

Plaintiff 11 died on November 12, 201 and became the deceased Plaintiff 11’s co-inheritors. Plaintiff 16 died on January 31, 2012 and became the deceased Plaintiff 16’s co-inheritors. Plaintiff 16 became the litigant, the litigant’s 1, the litigant’s litigant’s litigant’s litigant’s litigant’s her co-inheritors.

(7) Face 12)

2. Judgment on this case’s defense

A. The defendant's main defense

With respect to the claim of this case for which the plaintiffs sought compensation for consolation money due to the above defendant's tort, the defendant, except the plaintiffs 10 and 19 (hereinafter referred to as "Buss plaintiffs"), consented to the decision of payment of compensation, etc. under the Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement (hereinafter referred to as the "Act") in relation to democratization movements, and pursuant to Article 18 (2) of the Act, judicial reconciliation under the Civil Procedure Act regarding damage suffered in relation to democratization movements pursuant to Article 18 (2) of the Act is established. Thus, the remaining plaintiffs' lawsuits in this case are

B. Determination

Article 10(1) of the Act provides that "a related person or his/her bereaved family member who intends to receive compensation, medical subsidies, and living allowances under this Act (hereinafter referred to as "compensation, etc.") shall file an application for payment of compensation, etc. with the Committee for the Restoration of Honor and Compensation to Persons Related to Democratization Movement (hereinafter referred to as the "Committee for Deliberation on Compensation for Democraticization") in writing, along with relevant evidential documents, as prescribed by Presidential Decree." Article 14(1) of the Act provides that "where an applicant who is served the original copy of the written decision on compensation intends to receive compensation, etc., he/she shall immediately file a claim for payment of compensation, etc. on the date of democratization compensation, along with the written consent to such decision." Article 18(2) of the Act provides that "where an applicant has consented to a decision on the payment of compensation, etc. under this Act, it shall be deemed that judicial reconciliation under the

In addition, according to Article 20 of the Enforcement Decree of the Act, where an applicant who has received a notice of decision on the payment of compensation or living support or a notice of decision on the restoration of honor pursuant to Article 18 intends to receive compensation, etc., he/she shall submit a written consent and a written application in attached Form 10, stating the following matters, along with one copy of the decision on the payment of compensation, the original decision on the payment of living support or the original decision on the restoration of honor and one copy of the applicant’s certificate of personal seal impression. 3. The consent and a written application in attached Form 10 of the Enforcement Decree of the Act state that “The applicant shall agree to the decision on compensation and claim the payment of compensation, etc., if he/she receives the compensation, etc., he/she shall enter into a compromise contract on the case, and he/she shall not claim it again in any way with respect to the case.” In light of the contents, legislative purport, consent and written request, it is reasonable to deem that judicial reconciliation under the Civil Procedure Act has been established as to all damage incurred in relation to democratization movement.

In other words, in full view of the facts-finding on the issue of return to the instant case, Eul evidence No. 9 and the purport of the entire arguments as to the fact-finding on the democratization compensation by this court, the remaining plaintiffs were determined to pay a total of KRW 50,000,000 or KRW 40,431,00 as shown in the attached list by applying for living allowances as a person related to democratization movement as a person related to democratization movement in the judgment of the court on the compensation for democratization, and the remaining plaintiffs agreed to the above decision of the payment and received all of the above living allowances at each time. As such, the remaining plaintiffs and the defendant can be recognized as having received all of the above living allowances pursuant to Article 18(2) of the Act, it shall be deemed that judicial reconciliation under the Civil Procedure Act has been

Therefore, since the remaining plaintiffs' lawsuits of this case are all unlawful because there is no benefit of protection of rights, the defendant's defense of this case is justified.

2. Conclusion

Therefore, the remaining plaintiffs' lawsuits of this case are dismissed, and part of the plaintiff 10 and 19's claims of this case are accepted within the scope of the above recognition, and each of the remaining claims is dismissed as they are without merit. Since the part against the remaining plaintiffs in the judgment of the court of first instance is unfair in conclusion, the part against the remaining plaintiffs in the judgment of the court of first instance shall be revoked and all of the plaintiffs in this case shall be dismissed. The part against the plaintiff 10 and 19 shall be just in conclusion, and the part against the plaintiff 10 and 19 shall be dismissed in this case. It is so decided as per Disposition. It is so decided as per Disposition by the assent of all.

[Attachment]

Judges Shin Chang-chul(Presiding Judge)