[1] Whether the extinctive prescription of a victim's right to claim State compensation that has been paid by a public official for a tort during the performance of his/her duties may proceed even while the North Korean status continues (negative in principle)

[2] The meaning of and the method to determine the "date when the person becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Code, which is the starting point of counting the short-term extinctive prescription that applies to the right to claim damages under the former part

[3] In a case where a civilian military employee Gap filed a claim for State compensation after the adjudication of disappearance on August 23, 2005 against Eul's wife Eul's children's family members, etc., who were the victim Eul who was the victim Eul's family on October 12, 197, was affirmed on August 23, 2005, the case holding that the court below erred in the misapprehension of legal principles in holding that the extinctive prescription for Eul's own right to claim State compensation has expired, but there was no error in the misapprehension of legal principles in holding that the extinctive prescription for his own right

[1] Even in cases where the short-term prescription period of three years for State compensation is calculated, as well as Article 166(1) of the Civil Act, Article 166(1) of the Civil Act, which is a general provision on the starting point of the statute of limitations, applies to cases where the three-year short-term prescription period is calculated, the statute of limitations begins only when “the time it is possible to exercise the right” arrives after adding to “the day on which damage or the perpetrator becomes aware”. However, in cases of exercising the State’s compensation right on the ground of North Korea’s tort during the performance of public official’s duties, it is objectively impossible to exercise the right against North Korea by submitting a complaint to the Korean court, etc., barring any special circumstances, since it is objectively impossible for North Korea to exercise the right against North Korea, unless there is any other special circumstance, while the North Korea’s payment continues to proceed (However, if adjudication of disappearance is finalized, it is only possible to exercise the inheritance right by the heir).

[2] Under Article 8 of the State Compensation Act, Article 766(1) of the Civil Act applies to the State compensation claim under the former part of Article 2(1) of the State Compensation Act. Thus, the State compensation claim is extinguished by prescription if the injured party or his legal representative does not exercise it for three years from the day when the injured party or the perpetrator becomes aware of the damages and the perpetrator. Here, “the day when the injured party becomes aware of the damages and the perpetrator” refers to the time when the injured party actually and specifically recognized the elements of the tort, such as the existence of the tort in the performance of public official’s duties and the occurrence of the damages caused thereby, but whether the injured party, etc. is deemed to have actually and specifically recognized the facts of the requirements of the tort shall be

[3] Where a civilian military employee Gap filed a claim for State compensation after the adjudication of disappearance on August 12, 197 against Eul's wife Eul's family member Eul et al., who was the victim Eul's family member of the victim Eul on October 12, 197, became final and conclusive on August 23, 2005, the case held that the court below erred by misapprehending the legal principles as to the starting point of the statute of limitations on the Eul's claim for State compensation, since it is objectively impossible for Eul to exercise State compensation right against the State even if the victim Eul was aware of losses and the perpetrator's identity on October 12, 197, which was the date of the occurrence of the tort, since it is objectively impossible for Eul to exercise State compensation right against the State from October 12, 197, since the statute of limitations on Eul's claim for State compensation cannot be seen to run from October 12, 197.

[1] Articles 2(1) and 8 of the State Compensation Act, Articles 166(1) and 766(1) of the Civil Act / [2] Articles 2(1) and 8 of the State Compensation Act, Article 766(1) of the Civil Act / [3] Articles 2(1) and 8 of the State Compensation Act, Articles 166(1) and 766(1) of the Civil Act

[1] Supreme Court Decision 98Da7001 delivered on July 10, 1998 (Gong1998Ha, 2087) / [2] Supreme Court Decision 2000Da22249 delivered on June 28, 2002 (Gong2002Ha, 1777) Supreme Court Decision 2005Da6579 Delivered on January 18, 2008 (Gong2008Sang, 2255) Supreme Court Decision 2004Da33469 Delivered on May 29, 2008 (Gong208Ha, 1109)

Plaintiff 1 and three others

Korea

Busan High Court Decision 2008Na15216 decided April 22, 2009

The part of the judgment of the court below concerning inheritance claim is reversed, and that part of the case is remanded to Busan High Court. All remaining appeals are dismissed.

The grounds of appeal are examined.

1. Regarding the plaintiffs' inheritance claims

A. Based on its adopted evidence, the court below acknowledged that the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 3's non-party 1's non-party 1's non-party 14, 1977's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party.

B. However, we cannot agree with the judgment of the court below for the following reasons.

In calculating the three-year short-term statute of limitations on the right to claim State compensation, Article 166(1) of the Civil Act, which is the general provision on the starting point of the statute of limitations, applies to the calculation of the three-year short-term statute of limitations, except for Article 766(1) of the Civil Act. As such, the three-year short-term statute of limitations begins only when the “if it is possible to exercise the right” arrives (see Supreme Court Decision 98Da7001, Jul. 10, 1998). However, as in the instant case, considering the reality of inter-Korean exchange and cooperation and the North Korean society’s non- democracy and closed of communication, in which the freedom of communication is restricted, it is objectively impossible to exercise the right by submitting a complaint against the defendant to the Korean court, etc. Thus, it is reasonable to deem that the statute of limitations has not run for the remaining period of payment (in this case, it is reasonable to deem that the heir’s exercise of the right to claim for State compensation by inheritance becomes final and conclusive as in this case).

In light of such legal principles and facts acknowledged by the court below, even if the North Korean non-party 2 knew of the damage and the perpetrator on October 12, 1977 in which the tort of this case occurred, the above non-party 2 was objectively impossible to exercise the right to claim the state compensation against the defendant. Thus, it cannot be viewed that the extinctive prescription period from October 12, 197, which is the date of the tort of this case, runs from the date of the tort of this case.

Unlike this, the court below erred in the misapprehension of legal principles as to the starting point of the statute of limitations, and the ground of appeal pointing this out is with merit.

2. Regarding the plaintiffs' inherent claims

A. The State compensation claim under the former part of Article 2(1) of the State Compensation Act applies Article 766(1) of the Civil Act to the State compensation claim under Article 8 of the same Act. Thus, the State compensation claim is extinguished by prescription if the injured party or his legal representative does not exercise it for three years from the day when the injured party or the perpetrator becomes aware of the damages and the perpetrator. The "date when the injured party becomes aware of the damages and the perpetrator" here refers to the time when the injured party actually and specifically recognized the facts of the requisite acts, such as the existence of the tort in the performance of official duties and the occurrence of the damages caused thereby, but whether the injured party, etc. is deemed to have actually and specifically recognized the facts of the requisite acts shall be determined reasonably by taking into account various objective circumstances in individual cases and situations where it is possible to claim damages (see Supreme Court Decision 2004Da33469, May 29, 20

In light of the various circumstances stated in its recognition, the court below recognized that Plaintiff 1, who is the wife of Nonparty 2 and his legal representative, of the remaining plaintiffs, was aware of the damages and the perpetrator caused by the tort of this case on October 13, 1977, and determined that the extinctive prescription period of the plaintiffs' right to claim state compensation has expired on October 14, 1980 after 3 years from October 14, 197, the following day. In light of the above legal principles and records, the court below's determination is acceptable, and there is no error of law such as misunderstanding of legal principles as to the short-term extinctive prescription, as otherwise alleged in the ground of appeal.

B. The exercise of a debtor's right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. As such, where the debtor acted to make it impossible or considerably difficult for the creditor to exercise his right or interruption of prescription before the expiration of the statute of limitations, and such measures are unnecessary, or the creditor objectively obstructed the creditor from exercising his right, or where the debtor has made the right holder trust it, or where there are special circumstances, such as where other creditors under the same conditions as the need to protect the creditor or where other creditors receive the repayment of the debt after the expiration of the statute of limitations, etc., it is remarkably unfair or unfair to allow the debtor to claim the completion of the statute of limitations (see Supreme Court Decision 2004Da33469, May 29, 2008).

However, according to the reasoning of the judgment below and the records, the first investigation of the accident of this case by the military investigation agency on October 14, 1980, where the short-term extinctive prescription of the plaintiffs' own claims has been completed, it is only possible to find out the circumstance that "the non-party 2 was forced by Non-party 1, not by voluntary North Korea, and is merely the victim who was forced by Non-party 1," and there is no evidence to support that the defendant committed an act that makes it difficult to exercise the plaintiffs' claims or that such measures are unnecessary. Further, even if the plaintiff 1 et al. was investigated by the investigation agency about the North Korea's payment situation of the non-party 2 and was conducted a movement surveillance from the authority on the ground that he was a relative of the victim of North Korea's payment, it is difficult to view that the plaintiffs could not exercise their rights objectively until the expiration of the extinctive prescription period on October 14, 1980.

Although the court below's decision that the defendant's defense of extinctive prescription does not constitute an abuse of rights on the grounds as stated above is justified in its conclusion, it is just in its conclusion, and there is no error of law by misunderstanding the legal principles as to abuse of rights in the defense of extinctive prescription as otherwise alleged in the ground of appeal

3. Conclusion

Therefore, the part of the judgment below against the plaintiffs regarding inheritance claims is reversed without examining the remaining grounds of appeal, and that part of the case is remanded to the court below for a new trial and determination. The plaintiffs' remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)