2019Da249589 Liability for damages

Plaintiff (Re-Appellant) 1 and 2 others

Law Firm Shin-soo, Counsel for the plaintiff-appellant

Attorney Kim-type et al.

person

Korea

Government Legal Service Corporation (Law Firm LLC)

Attorney Lee Jae-in et al.

Seoul High Court Decision 2018ReNa20286 Decided June 13, 2019

October 29, 2020

All appeals are dismissed.

The costs of appeal are assessed against the defendant (defendant).

The grounds of appeal are examined.

1. Article 75(7) of the Constitutional Court Act provides that where a constitutional complaint under Article 68(2) of the same Act is accepted, if a litigation case related to the relevant constitutional complaint is already finalized, the parties may request a retrial;

Article 18(2) of the former Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movements (amended by Act No. 13289, May 18, 2015; hereinafter referred to as the "former Democratization Compensation Act") provides that "where an applicant consents to the determination of payment of compensation, etc. under this Act, the decision of payment of compensation, etc. under this Act shall be deemed to have been made by judicial compromise under the Civil Procedure Act for the damage incurred in relation to Democratization Movement.

On August 30, 2018, the Constitutional Court rendered a decision that the part concerning mental damage caused by a tort is unconstitutional (the Constitutional Court Decision 2014HunBa180, August 30, 2018; hereinafter referred to as "the Constitutional Court Decision 2014HunBa180, Aug. 30, 2018") that the part concerning mental damage caused by a tort is unconstitutional (the Constitutional Court Decision 2014HunBa180, Aug. 30, 2018).

The decision of partial unconstitutionality of this case is a decision that has the same effect as the abolition of a part of Article 18(2) of the Act on the Compensation for Residents' Movements by declaring that the part of "mental damage caused by a tort", which is a part of "damage caused in relation to a democratization movement, is unconstitutional and thus has a binding effect on the court.

Before a decision on partial unconstitutionality of the instant case is rendered, the confirmation of the constitutional complaint has already been made in the relevant litigation case.

The circumstances for which a decision of partial unconstitutionality was rendered on a unconstitutional decision of this case are grounds for retrial under Article 75(7) of the Constitutional Court Act.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed.

On July 12, 2012, the non-party (the non-party died after the decision on the review of this case was rendered) and the plaintiff (the plaintiff, hereinafter referred to as the "Plaintiff") 3 filed a lawsuit of this case claiming consolation money against the defendant (the re-defendant, hereinafter referred to as the "defendant") by asserting that public officials belonging to the defendant's affiliated agencies have committed a series of illegal acts related to the so-called "non-party-affiliated case" and their family members suffered emotional distress.

On November 8, 2013, the Seoul Central District Court sentenced the judgment of the first instance court that partly admitted the consolation money and the part corresponding to the share of the family of the non-party and the non-party 3's claim, and the plaintiff 3 and the defendant filed an appeal as to the part against the judgment of the first instance court.

On May 3, 2016, Seoul High Court recognized that the Nonparty and Plaintiff 3 applied for the payment of compensation or living allowances under the former Democratization Compensation Act as a person related to democratization movements and consented to the decision of payment thereof and received living allowances, etc. In addition, inasmuch as a judicial compromise has been established pursuant to Article 18(2) of the former Democratization Compensation Act, the Nonparty and Plaintiff 3’s claim for consolation money was revoked on the ground that there is no benefit of protection of rights, thereby rejecting the claim for consolation money on the ground that it is unlawful. The judgment subject to review of this case became final and conclusive on August 17, 2016.

During the above appellate trial, the Nonparty and Plaintiff 3 filed an application with the Seoul High Court for adjudication on constitutionality of Article 18(2) of the former Democratization Compensation Act, and upon dismissal of the application, filed a petition with the Constitutional Court for adjudication on constitutional complaint (2016HunBa215) pursuant to Article 68(2) of the Constitutional Court Act on June 2, 2016. The Constitutional Court held that the constitutional complaint filed by Nonparty and Plaintiff 3 was ruled unconstitutional on August 30, 2018 by combining relevant cases and examining the constitutional complaint filed by Nonparty and Plaintiff 3.

3. On the grounds delineated below, the lower court determined that there were grounds for retrial under Article 75(7) of the Constitutional Court Act in the instant judgment subject to review.

In a lawsuit of the appellate court that became the premise of the above constitutional complaint filed by the Nonparty and Plaintiff 3, the judgment subject to a retrial that dismissed the Nonparty and Plaintiff 3’s claim for consolation money for emotional distress by applying the part that lost its validity as a decision of unconstitutionality under Article 18(2) of the former Democratization Compensation Act, which became final and conclusive. Therefore, this case is the pertinent litigation case that became the premise of the above constitutional complaint, and there are grounds for retrial under Article 75(7) of the Constitutional Court Act.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the grounds for retrial under Article 75(7) of the

4. The Defendant’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok