2018 Ghana 113598 Damage (State)

A

Attorney Kang Byung-chul, Counsel for the defendant-appellant

Korea

September 18, 2018

October 30, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) Admission and discharge from active service of the plaintiff;

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

2) The Plaintiff was a Vietnam War veteran for two years from March 29, 1971 to May 1973, and was awarded a military commander commendation on August 13, 1971. The Plaintiff was awarded the Order of the French Military Merit on March 16, 1972. On August 1, 1972, the Plaintiff was promoted to Staff First Lieutenant on December 2, 1972.

3) On March 9, 1973 to August 20, 1974, the Plaintiff served in the 15th Army following the return of Korea. From August 21, 1974 to June 30, 1974, the Plaintiff performed information and operations in the first official award group, etc. of the Special Power Headquarters.

4) On July 5, 1975, the Plaintiff was transferred to the Third Team of the Army around July 5, 1975, and was discharged from military service on April 30, 1976 according to the personnel management order of the third military headquarters.

(b) Criminal cases in lodging B;

1) Around February 7, 1974, the Plaintiff’s lodging room B was detained by the investigator belonging to the Central Information Department in a voluntary dynamic form without a warrant. On February 13, 1974, a detention warrant was issued and detained.

2) The facts charged that the net B assisted and aided the activities of North Korea from November 1, 1963 to November 1, 1966 by aiding and abetting the activities of Da, D, and E and aiding and abetting the locking of D and E (Violation of the Antipublic Law, etc.) were charged with the Seoul District Court 74 Gohap160, 175, 181, and 196 (merged) and was sentenced to imprisonment for life on July 24, 1974. The appeal and appeal were filed against this, but the Seoul High Court dismissed the appeal and appeal in its entirety by the Supreme Court Decision 74No112 Decided December 9, 1974, Supreme Court Decision 75Do279 Decided April 8, 1975 and confirmed.

3) However, on October 29, 2015, the judgment of innocence was finalized on the deceased B (Supreme Court Decision 2015Do8834 Decided October 29, 2015).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 8, purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that the investigator of the Central Information Department, who belongs to the defendant, illegally detained the network B and obtained a false confession, and was sentenced to life imprisonment due to a violation of the anti-public law, etc., and that the plaintiff was forced to discharge the plaintiff due to the violation of anti-public law by the well-known net B, so the defendant is liable for compensation for the loss suffered by the plaintiff due to the unfair discharge. The defendant asserts that the plaintiff's claim for compensation for damages was extinguished by the lapse of five years from April 30, 1976, which was discharged by the plaintiff.

B. Determination

1) In a case where a public prosecution was instituted on the basis of evidence, etc. collected by a State agency due to an illegal act, etc. during the investigation process, and a final judgment of conviction was rendered, but the existence of grounds for retrial was revealed later and the judgment of innocence became final and conclusive in the retrial procedure, and the State claims damages against the State due to an illegal act, etc. of the State agency, it is deemed that the obligee was de facto

Therefore, in such a case, the defense of the completion of the extinctive prescription by the State, which is the debtor, cannot be allowed as an abuse of rights against the principle of good faith. However, barring any special circumstance, the creditor shall exercise his/her rights within six months equivalent to the suspension of prescription under the Civil Act from the date of the final judgment of innocence where such disability has been removed (see Supreme Court Decision 2013Da201844, Dec. 12, 2013). 2) In light of the above legal principles, it is apparent in the record that, first of all, the Plaintiff did not bring the instant lawsuit before the expiration of the extinctive prescription period from the time of the discharge (1976, April 30, 197). On the other hand, the Plaintiff cannot be deemed to have a de facto disability that could not expect the Defendant to file a claim for damages from October 29, 2015, but the Plaintiff cannot be deemed to have exercised the claim for damages within the reasonable period of time after the discharge of the damages claim against the Defendant.

3) Therefore, the Defendant’s assertion of the completion of extinctive prescription against the Plaintiff’s claim for damages is not permissible as an abuse of rights against the principle of good faith. The Defendant’s defense of extinctive prescription is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee fixed-term