[1] The debtor's assertion that the statute of limitations expired is not permitted against the good faith principle

[2] The initial date of the damages for delay of the compensation liability due to the tort (=the date of the arguments in fact-finding) in a case where a significant change occurs in comparison with the time of the tort in monetary value, etc. at the time of the arguments to be considered when calculating consolation money after the lapse of three months

[1] Articles 2 and 162 of the Civil Act / [2] Article 751 of the Civil Act

[1] Supreme Court Decision 2002Da32332 Decided October 25, 2002 (Gong2002Ha, 2849), Supreme Court Decision 2004Da33469 Decided May 29, 2008 (Gong2008Ha, 1109) / [2] Supreme Court Decision 2010Da28833 Decided January 13, 201, Supreme Court Decision 2010Da53419 Decided January 13, 201

Plaintiff 1 and seven others (Law Firm Gyeongsung, Attorneys Cho Yong-hwan et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2010Na43322 decided November 26, 2010

1. Of the part of the lower judgment regarding delay damages, the part of the lower judgment against the Defendant ordering payment of KRW 387,853,985 to Plaintiff 1, and KRW 200,000,000 to Plaintiff 2, and KRW 80,000 to the remainder of the Plaintiffs respectively, in excess of the amount equivalent to 5% per annum from October 22, 2010 to March 28, 2013, and KRW 20% per annum from the next day to the day of full payment, is reversed, and the first instance judgment is revoked, and all of the Plaintiffs’ claims corresponding to this part are dismissed.

2. The defendant's remaining appeals and the plaintiffs' supplementary appeals are all dismissed.

3. The incidental costs are borne by the plaintiffs, and the remaining costs of the lawsuit except for the incidental costs shall be borne by the plaintiffs, and the remaining costs shall be borne by the plaintiffs, and the defendant.

The grounds of appeal and the grounds of incidental appeal are also examined.

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

A. The exercise of the debtor's right of defense based on the extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, where there are special circumstances, such as the debtor's exercise of right or interruption of prescription prior to the completion of prescription, the debtor's act of making it impossible or considerably difficult for the creditor to exercise his right or interruption of prescription, the creditor's act was committed to believe that such measures are unnecessary, the creditor was objectively unable to exercise his right, or the debtor did not use the statute of limitations after the completion of prescription, or where there are circumstances such as making the right holder trust, or where other creditors under the same conditions as the need to protect the creditor receives repayment of the debt, etc., the debtor's refusal to perform the obligation is remarkably unfair or unfair, it is not allowed to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decisions 2002Da3232, Oct. 25, 2002; 2004Da3469).

B. According to the reasoning of the judgment below, the court below rejected the defendant's defense of extinctive prescription, namely, that the defendant is liable for consolation money under the State Compensation Act for all non-property damage suffered by the plaintiffs as above, and that the defendant is liable for consolation money under the State Compensation Act, i.e., "the defendant can exercise his right to claim compensation against the defendant from May 25, 191 on the ground that the extinctive prescription has run five years since the above date and time became five years since the plaintiff 1 could exercise his right to receive assistance without a warrant, and the plaintiff 1's right to receive assistance was not guaranteed, and by manipulating evidence by inducing the witness to make a false confession and by inducing the witness to make a false statement, thereby being prosecuted later and convicted for seven years of imprisonment." The court below rejected the defendant's assertion that this constitutes an abuse of rights as follows, since the extinctive prescription period has expired since the plaintiff 1's right to claim compensation for damages against the defendant from May 25, 1991."

In full view of all the circumstances, including ① physical or mental legacy committed by an investigator in a security unit to make a false confession, ② the prosecution investigation process has continued to make a false confession, ③ the court of first instance and the court of final appeal found guilty of the facts charged, ③ the court of final appeal and the court of final appeal after the conviction was rendered, ③ the court of final appeal and the court of final appeal have been classified as a person who committed a crime of public security surveillance and received poor treatment than other prisoners, ⑤ the fact that the person was subject to a security surveillance disposition after parole, ⑤ the plaintiff 2 also received illegally selected search and surveillance from the security unit investigators, and ② the rest of the plaintiffs except the plaintiff 1 were at a disadvantage of the espionage's family members, and the fact that the court of final judgment and the court of final appeal were found guilty of the facts charged, ④ the fact that the court of final judgment and the court of final judgment were classified as a person who committed a crime of public security and good faith, ⑤ the fact that the defendant did not have any obligation to protect the plaintiffs' rights, and thus, the defendant's claim for damages against the defendant's unlawful acts.

In light of the above legal principles and records, the above judgment of the court below is just and there is no error of misconception of facts or misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the defendant's second ground for appeal

According to the reasoning of the lower judgment, the lower court determined that the Defendant was liable for the payment of damages for delay from May 24, 1985, on each of the principal amount of consolation money recognized to the Plaintiffs, to the investigators affiliated with the security unit.

However, we cannot accept this part of the judgment of the court below for the following reasons.

Of course, inasmuch as the victim could continue to enjoy legal interests suffered from tort, in principle, liability for damages arising from tort ought to be deemed to have occurred at the same time in light of the concept of fairness. However, in calculating consolation money, all circumstances arising up to the time of closing argument as well as the national income level or monetary value, which serves as the basis for calculating consolation money, should also be reflected at the time of closing argument. If consolation money is determined without any change in the value of currency at the time of establishing tort, it would be particularly problematic even if damages for delay were to occur at the time of establishment of tort. However, if it is deemed that there was a considerable change in the value of 3 months after the lapse of 10 months from the time of closing argument and the value of currency at the time of closing argument of the court below, it would be 10 years from the time of closing argument and 20 years from the time of calculating consolation money after the lapse of 14 years from the time of closing argument of the court below. This is because, as seen above, there would be no problem in calculating consolation money at the time of present argument and 14 years from the above.

In the end, the court below erred by misapprehending the legal principles on the initial date of damages for delay due to tort. The defendant's assertion pointing this out is with merit.

3. As to the ground of incidental appeal No. 1 of the plaintiffs

In a case where a prosecutor who is an investigation agency is suspected of having committed a crime against a criminal suspect with respect to a specific criminal fact and is likely to be convicted, he/she may institute a public prosecution with respect to the arrest of a criminal suspect through the prescribed procedure. As such, in an objective view, if there are reasonable grounds for the prosecutor to be suspected of having a possibility of being convicted of having a criminal suspect, the prosecutor shall be found to have the reason for not guilty only when the judgment of the investigation agency reaches the extent that it is considerably unreasonable in light of the empirical and logical rules, even if there is no evidence sufficient to prove the existence of the crime through the subsequent trial procedure (see Supreme Court Decision 93Da20924 delivered on August 13, 1993).

Examining the reasoning of the judgment below in light of the records, the court below acknowledged facts based on the evidence adopted by the court below, and, on the grounds as stated in its reasoning, determined that the prosecutor was likely to receive a judgment of conviction against the plaintiff 1 at the time, in light of the empirical rule and logical rules, it was considerably impossible to affirm the rationality, or that the prosecutor was not aware of the illegal investigation by the investigators of the security unit, and it was not sufficient to view that the investigator intentionally concealed it. It is justified in accordance with the above legal principles. In so doing, the court below did not err by exceeding the bounds of

4. As to the ground of incidental appeal No. 2 by the plaintiffs

The amount of consolation money for mental suffering caused by tort can be determined at the discretion of the fact-finding court in consideration of various circumstances (see Supreme Court Decisions 2002Da43165, Nov. 26, 2002; 2004Da66001, Jun. 23, 2005, etc.).

Examining the record in light of the above legal principles, the amount of consolation money determined by the court below is determined in consideration of various circumstances as stated in its holding, and it cannot be viewed as exceeding its discretion. Therefore, the court below did not err by misapprehending the legal principles as to

5. Conclusion

Therefore, the part against the defendant as to damages for delay of the judgment of the court below shall be reversed. Since this case is sufficient for the court to directly judge this case, it shall be cut down pursuant to Article 437 of the Civil Procedure Act. Of the part concerning damages for delay of the judgment of the court below, among the part concerning damages for delay of the judgment of the court below, the part against the defendant 1 ordering payment exceeding the amount of 387,853,985 won, which is the amount stated in paragraph (1) of the judgment of the court of first instance, 200,000 won, which is the amount stated in paragraph (1) of the judgment of the court of first instance, and 80,000,000 won, which is the amount listed in paragraph (1) of the judgment of the court of first instance, from October 22, 2010 to March 28, 2013, which is the date of the closing of each judgment of the court of first instance to the date of full payment, the part against the defendant is reversed and all of that part.

In addition, the remaining appeals by the defendant and the incidental appeals by the plaintiffs are all dismissed due to the lack of grounds. The incidental costs are assessed against the plaintiffs. 4/5 of the total costs of the lawsuit except for the incidental costs are assessed against the plaintiffs, and the remainder is assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)