Plaintiff (Attorney Han-dong et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Echeon, Attorneys Yu Byung-ok et al., Counsel for defendant-appellant)

March 26, 2010

Seoul Northern District Court Decision 2009Da15159 Decided October 8, 2009

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The defendant shall pay to the plaintiff 80,000,000 won with 5% interest per annum from October 18, 2005 to the first instance judgment, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

A. The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 70 million won with 5% interest per annum from October 18, 2005 to the date of the judgment of the court of first instance, and 20% interest per annum from the next day to the date of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Basic facts

The reasoning for this part of the court's explanation is the same as that of Paragraph 1 of Article 420 of the Civil Procedure Act, so this part of the reasoning of the court's judgment is cited as it is.

2. Determination:

(a) Occurrence of liability for damages;

1) According to the facts found above, since it is apparent in light of the empirical rule that the plaintiff suffered from extreme mental pain due to rape, indecent act by compulsion, residential intrusion, and attack (hereinafter “the tort in this case”), the defendant is liable to compensate the plaintiff for damages arising from such mental pain.

2) On this basis, the defendant defense that the plaintiff's damage claim was extinguished by prescription. Thus, the damage claim for tort is extinguished by prescription if the victim did not exercise it for three years from the date on which he became aware of the damage and the perpetrator (Article 766 (1) of the Civil Act), and Article 766-8 through 13 of the evidence No. 4-2 of the Civil Act, the plaintiff filed a complaint with the Goyang Police Station on December 5, 2005 against the non-party who was male-gu male-gu and the non-indicted 50 of the second half of the year as the defendant, and then filed a complaint against the non-party by specifying the defendant on the 20th of the same month, and the withdrawal of the complaint against the non-party on the following day is recognized. Thus, it is evident that the plaintiff, at least on December 20, 2005, the defendant and the non-party were aware of the damage caused by the tort of this case, which was the perpetrator, and the lawsuit of this case was filed on March 27, 2009.

However, according to the evidence Eul's evidence Nos. 2 and 3, the defendant's criminal trial on the illegal act of this case was pending on February 14, 2006, and in order to pay damages liability for the illegal act of this case on February 14, 2006, the period of extinctive prescription has been interrupted. The plaintiff's second appeal pointing this out is with merit, and the plaintiff's second appeal pointing this out is with merit. The plaintiff's second appeal pointing this out. The plaintiff's second appeal pointing this out has no merit.

3) The defendant asserts that ① the deposit of this case is limited to the scope of the deposited amount, and thus, the damage liability exceeding the deposited amount has expired by prescription, as it is limited to the scope of the deposited amount, even if the deposit of this case is deemed to be approved, since it is merely an expression of intent to the depository and it is not an indication to the creditor. ② The defendant asserts that the deposit of this case was extinguished by prescription, since it is merely an expression of intent to the depository and it is not an indication to the creditor.

First, as to whether the deposit of this case constitutes the ground for suspending the extinctive prescription, one of the reasons for suspending the extinctive prescription is an act indicating the existence of a right against the person who is expected to lose his/her right by prescription. Meanwhile, when the creditor fails to receive repayment or is unable to receive it, the deposit is an institution that enables the debtor to deposit the object of repayment such as money in the deposit office to achieve the purpose prescribed by the law such as exemption of the obligation (Article 487 of the Civil Act). Therefore, it is reasonable to deem that in a criminal trial, if the defendant deposited the damaged amount with the victim as the victim, the deposit is recognized as a tort liability against the victim. Even if the report on restricting the collection of deposit was attached, it is nothing more than the fact that the depositor did not exercise his/her right to recover the deposit except where the right to recover the deposited amount became final and conclusive in the criminal trial.

Next, as to whether there was an indication of approval against the plaintiff who is the creditor, the depositor shall make a deposit without delay and notify the creditor thereof (Article 488(3) of the Civil Code, which is attached to a deposit notice to be sent to the deposited person by the depositor in accordance with Articles 23 and 27 of the Deposit Rules, and the deposit officer is required to send the deposit notice to the deposited person, but this is only a delivery by the deposit officer for the deposited person). As seen above, the defendant made the deposit of this case in accordance with the procedure. Thus, the defendant made the deposit of this case and notified the plaintiff of the deposit, so the defendant expressed that he was aware that he was liable to compensate the plaintiff.

Next, as to the extent of the effect of approval, the suspension of prescription takes effect as to the whole amount of the obligation if the obligation is discharged in part (see Supreme Court Decision 2009Da51028, Nov. 12, 2009, etc.). As long as the Defendant approved the liability for damages arising from the tort of this case by making the deposit of this case, it is reasonable to view that the amount of deposit affects the whole amount of the obligation for damages even if it is part of the obligation for damages. Accordingly, the above argument by the Defendant is without merit.

4) In addition, even if the Plaintiff’s damage claim was not extinguished by prescription, the Defendant alleged that the lawsuit of this case filed more than three years after the filing date of the complaint violates the principle of good faith and the principle of invalidation. However, in light of the Plaintiff’s filing time of the complaint, the criminal trial result against the Defendant, etc., the mere fact that the lawsuit of this case was filed more than three years after the filing of the complaint against the Defendant cannot be readily concluded that the lawsuit of this case violates the principle of good faith and the principle of invalidation, and there is no other evidence to acknowledge the Defendant’s assertion

(b) Scope of damages;

The amount of consolation money shall be determined at KRW 10 million, taking into account all the circumstances, such as the relationship between the Plaintiff and the Defendant, the Plaintiff’s age, the background and degree of the tort of this case, the content and degree of the tort of this case, the progress of the criminal trial against the Defendant, and the Defendant’s partial repayment, etc.

Therefore, the defendant is obligated to pay to the plaintiff 10 million won consolation money and damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from October 18, 2005, which is the date of final tort, to October 8, 2009, which is deemed reasonable for the defendant to resist the existence and scope of the obligation to perform.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Jin-hee (Presiding Judge)