2018Na31935 Damage (State)

west 00

Daegu

Law Firm Gyeong-Gyeong et al., Counsel for defendant-appellant

Attorney Cho Jae-soo

Korea

The Minister of Justice shall grant his/her legal representative stay.

Ratification of a litigation performer;

Daegu District Court Decision 2018Da113598 Decided October 30, 2018

June 12, 2019

July 10, 2019

1. The judgment of the court of first instance is modified as follows.

A. The Defendant shall pay to the Plaintiff 50,000,000 won with the interest rate of 15% per annum from June 12, 2019 to the day of complete payment. B. The remainder of the Plaintiff’s claim is dismissed.

2. All costs of the lawsuit are borne by the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) The plaintiff's entrance and discharge process;

1) On May 27, 1969, the Plaintiff entered the Army as a private soldier, but was on January 26, 1970.

2) The plaintiff was dispatched in Vietnam for two years from March 29, 1971 to March 5, 1973 and received a military commander commendation on August 13, 1971; on March 16, 1972, the plaintiff was awarded the Order of the French Military Service Merit; on August 1, 1972, the plaintiff was promoted to the First Lieutenant on March 8, 1973 to the Second Lieutenant 60,000. 3) immediately after he returned from March 8, 1973 to August 20, 1974, the plaintiff served in the 15 Team of the Army from August 21, 1974 to June 30, 1975.

4) On July 5, 1975, the Plaintiff was transferred to the third company of the Army around July 5, 1975. On April 30, 1976, according to the personnel management order of the third company headquarters, the Plaintiff was ordered to discharge from military service not by sources pursuant to Article 37(1)2 of the former Military Personnel Management Act (amended by Act No. 2979, Dec. 31, 1976) (hereinafter “instant compulsory discharge”).

B. Before February 7, 1974, the Plaintiff’s judgment of not guilty in criminal cases of Bright, which was well-grounded in the Plaintiff, was detained in a voluntary operation form without a warrant by the investigators belonging to the Central Information Department, and the detention warrant was issued on February 13, 1974.

2) On November 1, 1963, through November 1, 1966, Blue House: the facts charged that aiding and abetting the espionage activities of North Korea from the Gyeonggi-gun to the espionage of North Korea, and aiding and abetting the espionage activities of North Korea, the former and Hong 00, and red 00, which were charged in the case of the Seoul Criminal District Court 74Gohap160, 175 (Joint), 181 (Joint), 196 (Joint), and 196 (Joint) and was sentenced to imprisonment for life on July 24, 1974; however, the appeal and appeal were dismissed on December 9, 1974, by the Seoul High Court Decision 74No112 (Supreme Court Decision 75Do279 Decided April 8, 1975, and the judgment in question became final and conclusive (hereinafter referred to as "the judgment in question").

3) Then, on the ground that the investigation result on the ‘Mule Bale Bale Bale Bale Baleb Bale Bale Bale Baleb,’s 'Muleung Do Spon Spon’ case, the investigator's criminal facts such as illegal confinement, harsh treatment, etc. were proved, the decision of retrial was rendered on August 16, 2013, and on October 24, 2014, the Seoul Central District Court 2013 Inventory 201 case, which was held on October 24, 2014, and Co-Defendant 1 made a confession statement in the absence of voluntariness due to unlawful confinement, threat, etc. committed against the investigators of the Central Information Department, and on the ground that the prosecutor's office investigation and retrial were pending in the court, or it is difficult to believe that the confession statement was inadmissible as it is, the judgment of innocence became final and conclusive through the appellate court and the final appellate court 2015.37.15

2. The parties' assertion

A. The plaintiff

The Plaintiff was subjected to a compulsory discharge disposition due to the violation of the Anti-Public Law, which was convicted of the deceased Blue House, while serving in military as an excellent and exemplary staff member. However, the instant case was committed by illegal confinement and harsh treatment by the investigators of the Central Information Department, and accordingly, the compulsory discharge disposition against the Plaintiff was unlawful. Accordingly, the Republic of Korea is liable for compensation for damages suffered by the Plaintiff. The Plaintiff seeks payment of the amount stated in the claim as consolation money out of compensation.

B. The right to claim damages against the Plaintiff was extinguished by prescription after the lapse of five years from April 30, 1976, which was a compulsory discharge disposition against the Plaintiff.

3. Determination

A. Defendant’s liability for damages

1) The underlying statutes at the time of compulsory discharge from active service of this case are as follows.

A person who falls under any of the following subparagraphs may be discharged from active service after deliberation by the committee for examination on discharge from active service of each military service, subject to deliberation by the committee for examination on discharge from active service of the former Military Personnel Management Act (amended by Act No. 2979 of December 31, 1976):

2. The term "person unfit for active service" means a person who falls under any of the following subparagraphs. 1. A person who is unable to perform his duties falling under the category of such person due to a defect in his ability; 2. A person who does not have such character or ability to perform his duties; 4. A person who does not fit for active service; 3. A person who does not have such character or ability to perform his duties; and 4. A person who does not have such character or ability to perform his duties; and 4. A person who does not have such character or ability to perform his duties; 4. A person who does not have such character or ability to perform his duties; 3. A person who does not have such character or ability to perform his duties; and 4. A person who does not have such character or ability to perform such duties, and a person who does not have such character or character as specified in subparagraph 1, 1982, shall be determined by Ordinance of the Ministry of National Defense;

2. A person who unfairly evades a dangerous or difficult task; 3. A person who fails to perform intentionally a legitimate order; 4. A person who falls under any of the following subparagraphs: (a) the development of the same is delayed and falls under any of the following subparagraphs; and (b) a person who is under the influence of others; and (c) a person who is under the influence of others; and

2) In light of the aforementioned basic facts and the testimony at the court of first instance, the Plaintiff did not have relevant materials, such as a joint review report on the grounds for which the Plaintiff received the instant compulsory discharge from active service. However, in light of the aforementioned basic facts and the testimony at blocks by witnesses at the court of first instance, the Plaintiff could be aware that the Plaintiff was serving as an excellent soldier in the Vietnam War War War, such as having received an order of military service while performing military service, and conducting information, operations, etc. at the public granting group of special power headquarters after returning to Korea. Moreover, the Plaintiff did not appear to have any other reason to incorporate the Plaintiff into active service as

Nevertheless, the Plaintiff was transferred to the third group of the Army around July 5, 1975 and was subject to the instant compulsory discharge on April 30, 1976, without any specific reason. This is due to the fact that the judgment of the instant review on B/L for B/L on April 8, 1975 became final and conclusive, and there was a person who was convicted of a violation of the Anti-Public Law among the relative relatives at the time.

In full view of the fact that it is impossible to deny that there was any disadvantage on the part of the soldier due to the annual system, the Plaintiff may be deemed to have received the compulsory discharge of the instant case due to the decision subject to a retrial against Bright, which is the deceased father, and there is no other counter-proof.

Furthermore, the Supreme Court's decision on the review of Bright of the deceased was based on the false confession by the investigators of the Central Information Department due to the illegal confinement and harsh treatment, etc. of the investigators of the Central Information Department, which caused the State's serious anti-human rights and organized tort. Accordingly, the decision on the review of B right of B right of B right of the deceased should be deemed to be unlawful.

Therefore, the Defendant is liable to compensate the Plaintiff for consolation money that the Plaintiff seeks from the damages incurred from the compulsory discharge of the instant case, barring any other special circumstances.

B. Determination on the statute of limitations defense

1) Whether the objective starting point of the extinctive prescription under the Civil Act applies to the defendant's liability for damages on the subject case of the reexamination of this case

According to Article 71(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 4102 of March 31, 1989), Article 8 of the State Compensation Act, Article 166(1) and Article 766(1) and (2) of the Civil Act, with respect to the Plaintiff’s claim for damages, the extinctive prescription of five years shall apply from three years from the date when the Plaintiff becomes aware of the damage and the perpetrator (the starting point of starting the management, Article 766(1) of the Civil Act), or from the date of illegal act (the starting point of starting the objective point, Articles 166(1) and 766(2) of the Civil Act) of the State

However, the instant judgment subject to a retrial constitutes a serious case of infringement of human rights and a suspicion of manipulation as stipulated under Article 2 (1) 4 of the Framework Act on the Settlement of History for Truth and Reconciliation (amended by Act No. 7542 of May 31, 2005; hereinafter referred to as the "Act on the Settlement of History").

The Constitutional Court en banc Decision 2014Hun-Ba148, 162, 162, 219, 466, 2015Hun-Ba50, 440 (competence), 2014Hun-Ba223, 290, and 2016Hun-Ba419 (merged) Decided August 30, 2018: (a) 3 and 4 of Article 2 (1) of the Act on the Reorganization of History (Case of Collective sacrifice by Private Persons)

As to the fixed case, the legislative intent of the extinctive prescription system, "the prevention of double repayment by debtors, sanctions against non-exercise of rights of creditors, and protection of reliance on the protection of debtors," is likely to serve as a basis for restricting the exercise of State compensation, and it is difficult for the State to consider that the country, which is obliged to guarantee the fundamental rights of individuals under the proviso of Article 10 (1) of the Constitution, has committed illegal acts against the citizens, as it is a special fundamental right established to restore and relieve them after the lapse of the period of time, and thus, it is difficult to conclude that the demand of the State for the legal stability through the expiration of the prescription system is in violation of the basic rights of the State under Article 10 (1) of the Constitution and the fundamental rights of the State under the proviso of Article 29 (1) of the Constitution, and that it is difficult for the State to fully consider the need to regulate the victim's right to seek compensation after the lapse of the period of time limit of time limit of time limit of time limit of time limit of time limit of the victim's right of action.

Therefore, in order to determine the expiration of the extinctive prescription, the State's liability for damages caused by the instant judgment subject to a retrial, which constitutes a serious violation of human rights under Article 2 (1) 4 of the previous Bankruptcy Adjustment Act, cannot be determined as to whether five years have passed from the date on which the party committed the tort by applying the objective starting point of the extinctive prescription under Articles 166 (1) and 766 (2) of the Civil Code, and it shall be determined according to whether three years have passed from the date on which the Plaintiff became aware of the damage and the perpetrator pursuant to Article 766 (1) of the Civil Code.

2) Whether extinctive prescription of the Plaintiff’s right to claim damages expires

The Plaintiff’s right to claim damages is against the compulsory discharge disposition on the ground of the judgment rendered by the reexamination of this case, which is the suspicion of serious infringement on and manipulation of human rights under the previous Bankruptcy Adjustment Act. As such, the State’s illegality in the judgment subject to reexamination of this case and its liability for damages therefrom also extend to the compulsory discharge disposition of this case against the Plaintiff. Therefore, Articles 166(1) and 766(2) of the Civil Act concerning the objective starting point of reckoning the statute of limitations for the Plaintiff’s right to claim damages cannot be applied, but Article 766(1) of the Civil Act concerning subjective starting point of

“The date when the injured party becomes aware of the damage and the perpetrator” under Article 766(1) of the Civil Act, which serves as the starting point of the short-term extinctive prescription of the right to claim damages due to a tort, means the time when the injured party, etc. reasonably and specifically, recognizes the elements of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Furthermore, whether the injured party, etc., at any time and in detail, recognized the facts of the above tort should be reasonably determined by taking into account various objective circumstances in each individual case and taking into account circumstances practically possible (see Supreme Court Decision 2010Da7577, May 27,

In light of the aforementioned basic facts, Gap evidence No. 11, and the purport of the entire pleadings, the retrial judgment of this case became final and conclusive on October 29, 2015. The plaintiff was not aware of such fact, and it can be recognized that he/she was aware of the facts that he/she became aware of the fact on October 29, 2015. It is difficult to view that the facts of the above state's tort were actually and specifically recognized until the judgment of innocence becomes final and conclusive. It is difficult to view that the plaintiff who suffered secondary damages due to such tort was not aware of such facts.

Ultimately, when the plaintiff becomes aware of the judgment not guilty in the above retrial, he/she should be deemed to have become aware of the damages caused by illegal acts of the State and of the perpetrator. Since the plaintiff filed the lawsuit in this case on May 2, 2018, which is within the period of extinctive prescription (three years) thereafter, the extinctive prescription for the plaintiff's right to claim damages was not expired (the same shall apply to the fact that the lawsuit in this case was brought within three years thereafter even if the judgment of not guilty was based on October 29, 2015 when

[A] Even if the statute of limitations has expired for the Plaintiff’s damage claim, in a case where a public prosecution was instituted based on evidence, etc. collected by a government agency due to an illegal act during the investigation process, and the existence of grounds for retrial was revealed later, and thereafter, a claim is filed against the State for damages due to an illegal act of a government agency, etc., the obligee’s defense of the expiration of the statute of limitations cannot be allowed as an abuse of rights against the principle of good faith, considering that there was a de facto obstacle that the obligee could not expect the claim for damages until the judgment of innocence becomes final and conclusive in the retrial procedure. However, barring any special circumstance, the obligee cannot be allowed to exercise his/her right within six months from the date when the judgment of innocence was rendered final and conclusive, which is equivalent to the suspension of prescription under the Civil Act (see Supreme Court Decision 2013Da201844, Dec. 12, 2013). Thus, the Plaintiff, who was not a direct party to the retrial judgment, had become aware of the Plaintiff’s right within 26 months before the date of retrial.

3) Sub-determination

Therefore, the defendant's argument that the statute of limitations has expired is without merit.

In cases where it is inevitable to increase the amount of consolation money that reflects the amount of consolation money as a result of a significant change in the national income level or monetary value, etc. compared to the time of tort as a result of the conclusion of arguments at the time of the occurrence of a long period between the time of tort and the time of the conclusion of arguments, damages for delay of compensation liability due to tort shall exceptionally be deemed to have occurred from the date of the conclusion of arguments at the time of the conclusion of arguments at the court of fact-finding, which is the standard for the calculation of consolation money. In such cases, it is necessary to appropriately increase the principal of consolation money at the time of the conclusion of arguments in consideration of the circumstances where compensation for consolation money in the amount deemed appropriate to be immediately paid as at the time of the establishment of such liability is delayed until the time of the occurrence of arguments at the time of the conclusion of arguments. Furthermore, in cases where a systematic and intentional act of infringement of human rights by public officials was committed, the need to restrain and prevent recurrence of similar

In full view of all the circumstances revealed in the argument of the case, such as the fact that the Plaintiff was discharged from active service on the ground of the judgment of review on whether the Plaintiff faithfully and well-grounded military service was caused by the anti-human rights and organized tort of state public officials, the honor of the Plaintiff as a military personnel, and the mental suffering caused by the espionage’s family member after forced discharge from active service, and the fact that the Defendant appears to have continued for a prolonged period of 40 years until the judgment of innocence was rendered, it is reasonable to determine the amount of consolation money to be paid to the Plaintiff by the Defendant as KRW 50 million.

D. Sub-determination

Therefore, the Defendant is obligated to pay the Plaintiff damages for delay calculated by the rate of 15% per annum from June 12, 2019, which is the date of the closing of argument in this case, to the day of complete payment.

4. Conclusion

Thus, the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is accepted in part of the plaintiff's appeal and it is modified as the judgment of the court of first instance.

Judgment of the presiding judge;

Suspension of Judge

Judge Foreather

1) As the former Enforcement Decree of the Military Personnel Management Act was wholly amended by Presidential Decree No. 4922 on April 20, 1970, Article 48 (Discharge from Military Service of Person with Low Efficiency) (hereinafter “former Enforcement Decree”).

Article 49 (Discharge from Active Service) but the former Regulations on the Discharge from Active Service, which is the Ordinance of the Ministry of National Defense, has not been amended.

C. On September 20, 1982, the enforcement rules of the Military Personnel Management Act were repealed simultaneously with the enactment of the enforcement rules.