[1] The limits of discretion held by the fact-finding court in calculating the amount of consolation money for non-property damage suffered by tort

[2] Whether it is permissible to compensate for property damage under the pretext of consolation money even though it is possible to determine property damage or there is insufficient proof of the occurrence of property damage (negative)

[1] As to the amount of consolation money for non-property damage suffered by tort, the fact-finding court may determine it at its discretion, taking into account various circumstances, but this does not mean that a judge's arbitrary discretion is allowed to calculate consolation money. The calculation of consolation money also has a limitation that the amount should be calculated in accordance with the times and general legal sentiment, and therefore, the calculation of consolation money goes beyond its limit to the extent of the discretion of the fact-finding court, which deviates from the bounds of the principle of fair sharing of damages and the principle of equity.

[2] The consolation money should be limited to the amount of suffering from mental suffering of a victim caused by a tort. Therefore, in cases where it is possible to determine property damage, seeking to compensate for property damage under the name of consolation money cannot be permitted, and it is more true in cases where proof of the occurrence of property damage is insufficient.

[1] Articles 393, 751, and 763 of the Civil Act / [2] Articles 393, 750, 751, and 763 of the Civil Act

[1] Supreme Court Decision 2002Da43165 Decided November 26, 2002 (Gong2003Sang, 211) Supreme Court Decision 2008Da3527 Decided December 24, 2009 (Gong2010Sang, 202) Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077)/ [2] Supreme Court Decision 84Da722 Decided November 13, 1984 (Gong1985, 23)

Plaintiff 1 and five others (Law Firm Barun, Attorneys Park Ha-ju et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2011Na38396 decided November 24, 2011

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the misapprehension of legal principle as to extinctive prescription

A. The obligor’s exercise of the right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. As such, in a case where the obligor, prior to the completion of the statute of limitations, has made it impossible or considerably difficult for the obligee to exercise the right or the interruption of prescription, has acted to make such an obligee believe it unnecessary, has objectively obstructed the obligee from exercising the right, or had the obligee trusted the same attitude that the obligor would not invoke the statute of limitations after the completion of the statute of limitations, and the obligor exercised his/her right within a reasonable period where the obligor would have expected to exercise the right, the obligor’s assertion for the completion of the statute of limitations may not be allowed as an abuse of rights against the principle of good faith (see, e.g., Supreme Court en banc Decision 2002Da32332, Oct. 25, 2002; Supreme Court Decision 2012Da202819, May

B. Examining the reasoning of the first instance judgment cited by the lower court in light of the aforementioned legal principles and records, the lower court was justifiable to have rejected the Defendant’s defense of extinctive prescription on the grounds that the Plaintiffs could not exercise the right to claim damages of this case against the Defendant until December 18, 2009, which became final and conclusive, and that the Defendant’s defense of extinctive prescription cannot be allowed against the principle of good faith. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine of ex

2. As to the misapprehension of legal principle as to the calculation of consolation money

A. As to the amount of consolation money for non-property damage suffered by tort, the fact-finding court may determine it at its discretion, taking into account various circumstances (see, e.g., Supreme Court Decisions 2002Da43165, Nov. 26, 2002). It does not mean that a judge’s arbitrary discretion is allowed to calculate consolation money. It does not mean that the computation of consolation money should be limited to the amount that can be consistent with the ordinary legal sentiment. Therefore, in calculating consolation money, beyond its limit, it goes beyond the bounds of the discretion of the fact-finding court (see, e.g., Supreme Court Decisions 2008Da3527, Dec. 24, 2009; 2012Da202819, May 16, 2013; 2012Da208194, Apr. 18, 2013).

B. According to the reasoning of the lower judgment and the reasoning of the first instance court cited by the lower court, the lower court determined that Plaintiff 1’s salary of KRW 12,125,300 as of 201 was difficult to maintain false statement contrary to one’s conscience by taking into account the following factors: (a) the first instance court, including the anti-human rights of the tort in this case; (b) the importance of the unlawful nature and its illegality; (c) the period during which Plaintiff 1 was subject to harsh treatment, including adviser, etc., from the security headquarters and the military prosecutor’s office until it was sent to the military prosecutor’s office; (d) the sentence, prison period; and (e) Plaintiff 1’s payment of wages from the recent Defendant to the rank retirement age of 100 million; and (e) Plaintiff 1’s wife, as at the time of the occurrence of the instant case, could have continued to receive consolation money of KRW 1600,000,000,000, which appears to have been forced to be supplied to Plaintiff 1.

C. However, according to the records, although Plaintiff 1 separately sought damages from lost income at the complaint, Plaintiff 1 sought damages from delay damages from the actual income before the complaint was filed, but it was found that Plaintiff 1 had received benefits by the time of rank retirement in the Army Before the suit, but excluded this part of the claim while changing the purport of the claim and the cause of the claim, and the court below did not recognize that Plaintiff 2’s suspension of business was due to the tort in this case. The case occurred in the course of the dispute with the inside forces of the military called the so-called Macil-U.S., and the charges charged were accepted in the course of solicitation for promotion. Plaintiff 1 was released from office for one year, and Plaintiff 1 was released from office for the first time on February 29, 1980, which was then the so-called new military branch’s authority to collect consolation money, and then the Plaintiffs’ political, economic, or social activities were not specifically restricted, and therefore, the amount of consolation money and other cases recognized by the court below as unlawful or significant violation of public authority.

Examining these circumstances in light of the legal principles as seen earlier, even though considering that the amount of consolation money is matters to be determined at the discretion of the fact-finding court, the lower court should be deemed to have deviated from the limits of its discretion by significantly violating the ideology of fair sharing of damages and the principle of equity by taking into account all circumstances that should not be considered in the calculation of consolation money into account as a ground for increase.

Therefore, the court below erred by misapprehending the legal principles as to the calculation of consolation money, thereby adversely exercising its discretionary power. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)