2015Da217829 Compensation (as stated)

A person shall be appointed.

Korea

Seoul High Court Decision 2014Na2028266 Decided May 1, 2015

February 18, 2016

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A. The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of trust and good faith and the prohibition of abuse of rights, which are the major principle of the Civil Act. Thus, in a case where an obligor had the right holder trusted after the completion of extinctive prescription, and where an obligee exercised the right within a considerable period of time that could expect the exercise of right, the obligor’s assertion of the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of trust and good faith (see, e.g., Supreme Court Decision 2009Da6969, Sept. 8, 2011). If the State received an application to ascertain the truth of a victim subject to the application of the Framework Act on the History for Truth and Reconciliation, which is the subject of the State’s application for ascertaining the truth of the past for truth and reconciliation, and where the obligor or his bereaved family members exercised the right within a considerable period of time, the State’s assertion that the extinctive prescription should not be completed by 2016.

In order to establish a circumstance, the Criminal Procedure Commission’s findings of fact-finding that the victim suffered from a harmful act by the State or a public official belonging to the State should be confirmed or presumed as the victim, and the victim’s rights should be exercised based on such determination.

B. The court below held that the lawsuit of this case was deceased on September 9, 1950 when the deceased B and the deceased C (hereinafter referred to as "the deceased").

Although five years have passed after the lapse of the statute of limitations, the Plaintiff filed the instant lawsuit on June 21, 2013, which was before the lapse of three years from June 22, 2010, giving the Defendant a trust in finding a truth-finding decision on the deceased, based on the fact-finding decision by the court of the past fact-finding that the Defendant would not invoke the benefit of the statute of limitations. Therefore, in light of the circumstances in its holding, the Plaintiff should be deemed to have exercised its right within a reasonable period to exclude the Defendant’s defense of the statute of limitations after the truth-finding decision, and therefore, the Defendant’s defense of the statute of limitations cannot be allowed as it constitutes abuse

C. However, the above determination by the court below is difficult to accept for the following reasons.

According to the reasoning of the judgment below and the record, the Korean War Reorganization Commission established a ruling of June 22, 2010 to confirm the deceased as the victim of the above case (hereinafter “the truth-finding decision of this case”). However, under the truth-finding decision of this case, the Korean War Reorganization Commission concluded that the residents of the North Korean War-dong and the refugees of the North Korean War-dong, including the deceased, were spawn at around September 1, 1950 when the Korean War, and that the cause of the above case was spawn in a group of spawns of the U.S. military forces at around 2:00 p.m. on September 1, 1950 when the Korean War-dong and the North Korean defectors were spawn were spawn from the North Korean War-dong, and that it was necessary for the U.S. military forces to find that it was not necessary to establish a disguised recommendation or a disguised recommendation to find out the possibility of military use by the North Korean military.

In light of the aforementioned facts in light of the legal principles as seen earlier, the former Bankruptcy Commission rendered a truth-finding decision to the effect that the deceased was sacrificed by not the harmful acts by the Defendant or the public officials belonging to the Defendant, but by the military harmful acts. Therefore, it is difficult to view that there are special circumstances to have a trust in the Defendant’s exercise of rights against the Defendant based on the truth-finding decision of this case, where the Plaintiff exercised its rights against the Defendant based on the fact-finding decision of this case, it is difficult to deem that

Nevertheless, the court below erred by misapprehending the legal principles as to the abuse of rights of the statute of limitations defense, on the premise that the Plaintiff had special circumstances to have such trust. The ground of appeal pointing this out is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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 Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-suk

Justices Cho Jong-hee