Whether the effect of the decision of unconstitutionality that Article 2(1)3 (a) and 4 (a) of the Framework Act on the Settlement of Former History for Truth and Reconciliation under Articles 166(1) and 766(2) of the Civil Act applies to cases where a lawsuit seeking compensation for damages incurred due to a public official’s unlawful performance of duties is pending in the court until the time when the decision of unconstitutionality is made (affirmative), and whether the statute of limitations for ten years under Article 766(2) of the Civil Act or for five years under Article 96(2) of the National Finance Act applies to the above right to claim compensation for damages arising from a public official’s unlawful performance of duties in cases under Articles 3 and 4 above (negative)

Article 8 of the State Compensation Act; Articles 166(1) and 766 of the Civil Act; Article 96(2) of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050, Oct. 4, 2006); Article 96(2) of the National Finance Act (see current Article 96(2) of the National Finance Act); Article 2(1)3 and 4 of the Framework Act on previous History Adjustment for Truth and Reconciliation

Supreme Court Decision 2018Da233686 Decided November 14, 2019 (Gong2020Sang, 16), Supreme Court en banc Decision 2018Da238865 Decided April 9, 2020 (Gong2020Sang, 902), Supreme Court Decision 2014Hun-Ba148, 142, 219, 219, 466, 2015Hun-Ba50, 440, 2014Hun-Ba223, 290, 2016Hun-Ba419 Decided August 30, 2018 (Hun-Ba263, 1394)

Plaintiff 1 and two others (Law Firm SN, Attorneys Kim Gi-ro et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Na2042451 decided February 13, 2019

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On August 30, 2018, the Constitutional Court rendered a decision that Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”) and Article 2(1)4 of the same Act that applies to “the case of collective sacrifice by a private person” in Article 166(1) and Article 766(2) of the Civil Act and “the case of cruel human rights infringement and manipulation” in Article 2(1)4 of the same Act shall be unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, Aug. 30, 2018; hereinafter “instant decision of unconstitutionality”).

The effect of the decision of unconstitutionality of this case extends to cases where a lawsuit seeking compensation for damages incurred by a public official’s unlawful performance of duties is pending in the court at the time of the decision of unconstitutionality regarding “a group sacrifice case” under Article 2(1)3 of the previous Bankruptcy Adjustment Act or “a serious violation of human rights or manipulation case” under Article 2(1)4 of the same Act. Therefore, as to such claim for damages, the ten-year extinctive prescription under Article 766(2) of the Civil Act (hereinafter “long-term extinctive prescription”) or Article 96(2) of the National Finance Act [Article 96(2) of the former Budget and Accounts Act (amended by Act No. 8050, Oct. 4, 2006; hereinafter the same shall apply] does not apply for five years (see, e.g., Supreme Court Decision 2018Da233686, Nov. 14, 2019).

2. The court below accepted the judgment of the court of first instance and rejected the Defendant’s claim for extinctive prescription on the following grounds.

A. The plaintiffs are descendants of the non-party who received 714 square meters prior to Yeongdeungpo-gu Seoul Metropolitan Government (number omitted) among the land located in the Guro-dong in this case. The judgment of accepting the claim of a distributor for the transfer of ownership in the civil lawsuit filed against the defendant by the person who received the allocation of the land located in the Guro-dong in this case (hereinafter referred to as "water distributors") became final and conclusive. After that, based on the evidence collected by the public officials belonging to the defendant through the illegal investigation, etc., the judgment dismissing the above final and conclusive judgment and dismissing the claim of the distributors (Seoul High Court Decision 68Hun23 delivered on December 6, 1989) was rendered and finalized.

The distributors or their successors have not completed the repayment of farmland until December 31, 1998, as stipulated in Article 3 of the Addenda of the Farmland Act (amended by Act No. 4817 of Dec. 22, 1994 and enforced January 1, 1996; hereinafter the same shall apply) due to the illegal acts committed by the public officials belonging to the defendant, and accordingly, they suffered loss of their rights to distributed farmland.

B. The Defendant asserts that the long-term extinctive prescription has expired prior to the filing of the instant lawsuit against the Plaintiffs’ claim for damages. The Plaintiffs’ damages were realistic on January 1, 1999, which was the three-year period stipulated in Article 3 of the Addenda to the Farmland Act, and the instant lawsuit was filed five years thereafter, but the Defendant’s defense of extinctive prescription is not permissible as an abuse of rights against the principle of good faith.

3. Examining the reasoning of the lower court regarding the Defendant’s liability for damages in light of the records, the Plaintiffs’ claim for damages in this case constitutes the State’s claim for property damage caused by the public official’s unlawful performance of duties in the suspicion of serious infringement of human rights and manipulation as referred to in Article 2(1)4 of the previous Act. Therefore, according to the effect of the decision of unconstitutionality of this case, Article 766(2) of the Civil Act or Article 96(2) of the former Budget and Accounts Act does not apply to the Plaintiffs’

Although the lower court erred by applying the provision that became invalid according to the Constitutional Court’s decision of unconstitutionality, it is justifiable to have rejected the Defendant’s defense of extinctive prescription. In so determining, the lower court did not err by misapprehending the

4. The Defendant’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)