[1] The limits of discretion of the fact-finding court to calculate the amount of consolation money for non-property damage suffered by the tort

[2] In a case where Party A, etc. suffering from Hansen's disease, was hospitalized at the National Mando Hospital operated by the State for the treatment and isolation of patients suffering from Hansen's disease, and sought damages from the State on the ground that he was forced to undergo abortion surgery by doctors, etc. belonging to the above hospital, the case holding that the court below erred by misapprehending the legal principles as to the calculation of consolation money for Party A, etc., which uniformly determined consolation money amounting to KRW 20 million, thereby exceeding the limit

[1] Articles 393, 751, and 763 of the Civil Act / [2] Articles 2(1) and 8 of the State Compensation Act, Articles 393, 750, 751, and 763 of the Civil Act

[1] Supreme Court Decision 2002Da43165 Decided November 26, 2002 (Gong2003Sang, 211), Supreme Court Decision 2008Da3527 Decided December 24, 2009 (Gong2010Sang, 202) Supreme Court Decision 2011Da108057 Decided January 16, 2014 (Gong2014Sang, 389) / [2] Supreme Court Decision 2014Da230535 Decided February 15, 2017 (Gong2017Sang, 540)

Plaintiff 1 and four others (Donghwa Law Firm et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Kim Hyun-young, Counsel for defendant-appellant)

Seoul High Court Decision 2015Na2060823 decided November 29, 2016

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. All of the Defendant’s appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

The court below acknowledged the fact that the plaintiffs suffered from Hansen's disease and were hospitalized in the National Dondo Hospital, Daegu Donwon, Kim Samcheon-si, National Donsan Hospital (hereinafter "National Donsan Hospital"), etc. (hereinafter "National Donsan Hospital, etc.") operated by the defendant for the treatment and isolation of patients suffering from Hansen's disease, and that they were forced to undergo abortion surgery from 1959 to 1974 by its affiliated doctors, nurses, etc.

Based on the facts stated in its reasoning, the lower court acknowledged the Defendant’s State liability against the Plaintiffs on the ground that: (a) the Defendant’s child-restricted policies and abortion surgery on human rights affected by Hansen’s disease did not have legal basis; (b) did not meet the suitability of the means and the minimum degree of infringement; and (c) did not impair human rights, equality rights, self-determination, rights not to be damaged; and (d) violated the Constitution by infringing on the freedom of privacy and the right to pursue happiness; and (b) even if the person affected by Hansen’s disease was properly accepted without any particular resistance, it is difficult to view it as a genuine consent

In light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the requirements for establishing State liability, or by misapprehending the legal principles due to insufficient deliberation, etc.

B. Regarding ground of appeal No. 2

The lower court acknowledged the following facts: (a) the Defendant enacted the Act on Finding the Truth of Persons Affected by Hansen’s Disease and Assistance, etc. to Victims (hereinafter “the Act”) established on October 17, 2007; (b) accordingly, constituted the committee for Finding the Truth of Persons Affected by Hansen’s Disease (hereinafter “the Committee for Finding the Truth”) to ascertain the truth of the relevant person’s disease; (c) made decisions against the Plaintiffs on March 28, 2013; and (d) made it possible for the Defendant to promote the enhancement of their human rights and stability by providing support to the victims related to the person affected by Hansen’s disease through the Act; and (d) the Finding Committee drafted a report issued around 2013 to point out the limit of the Act on Finding the medical support, living support, etc., not national compensation for the victims who suffered the Act.

Based on the above facts, the lower court determined that: (a) the Defendant, a debtor, was unable or considerably difficult to exercise the right or extinctive prescription before the completion of the prescription; (b) there was an obstacle to the Plaintiffs from exercising the right objectively; and (c) there was a special circumstance that, when exercising the right within a considerable period of time based on the victim’s decision, the Defendant would not claim the extinguishment of the right upon the completion of the extinctive prescription. Furthermore, even though the Plaintiffs anticipated to take appropriate measures for compensating for damages in accordance with the Act on Persons Affected by Hansen’s Disease, the lower court determined that it is reasonable to view the Plaintiffs who filed the instant lawsuit as exercising the right within a reasonable period of time to exclude the Defendant’s defense of extinctive prescription.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the completion of extinctive prescription, contrary to what is alleged in the grounds of appeal.

2. Judgment on the grounds of appeal on the plaintiffs' amount of consolation money

A. As to the amount of consolation money for non-property damage suffered by tort, the fact-finding court may determine it at its discretion by taking into account various circumstances, and the court does not have to clearly state all the circumstances that form the basis for the determination of consolation money in its judgment (see, e.g., Supreme Court Decision 2002Da43165, Nov. 26, 2002). However, this does not mean that this would lead to the judge’s computation of consolation money in mind. The calculation of consolation money must be in line with the relevant age and general legal sentiment, and there is a limitation that it should be in line with the principle of fair sharing of damages and the principle of equity should be deemed to deviate from the limits of discretion of the fact-finding court (see Supreme Court Decision 2008Da3527, Dec. 24, 2009).

B. The court below acknowledged the illegality of abortion surgery performed against the plaintiffs, and the physical and mental suffering suffered by the plaintiffs, while the defendant established the treatment system of Hansen's disease and implemented an enlightenment policy to eliminate prejudice and discrimination against Hansen's disease, and provided the basis for their lives, such as treating Hansen's disease patients free of charge and laying down the foundation for their lives. Based on the calculation of consolation money, the court below decided consolation money for the plaintiffs on the following grounds: (a) mental damage suffered by the plaintiffs was caused by the defendant's illegal child restriction policy and abortion surgery; and (b) decided consolation money for the plaintiffs in a lump sum 20 million, on the basis of the circumstance that the occurrence is the same as that of the defendant's illegal abortion restriction policy and abortion surgery.

C. However, we cannot accept the judgment of the court below for the following reasons.

1) As determined by the lower court, it cannot be deemed that the abortion surgery performed by the Defendant’s doctors, etc. to the Plaintiffs who are affected by Hansen’s disease did not have any legal basis or meet the lawful requirements. The Defendant infringed the right not to have the body damaged under the Constitution due to the direct infringement of the Plaintiffs’ body and the right not to have the body damaged under the Constitution, and the right to life, etc. of the fetus. The Defendant infringed on or restricted the right not to pursue happiness by making the Plaintiffs a single family with respect to which the Plaintiffs have contributed to their descendants by prohibiting childbirth

2) If the Defendant’s above infringement intends to be recognized as a legitimate exercise of governmental authority pursuant to the government’s policy, there must be explicit grounds for such infringement in accordance with the law, and it does not contravene the principle of excessive prohibition. However, in light of the health policy purpose of Hansen’s disease prevention, even if considering the genetic risk, infection risk, treatment possibility, etc. of Hansen’s disease, which is medically revealed at the time of the instant abortion surgery, it is difficult to recognize the adequacy of such means or minimum damage.

3) Even if the plaintiffs consented to the above alcohol, the consent should be obtained from the plaintiffs who are the other party to the infringement in order to be valid. However, the plaintiffs seem to have consented to the social prejudice and discrimination against Hansen's disease, poor social, educational, and economic conditions, etc. without sufficiently explaining whether Hansen's disease occurred, whether it is likely to be infected with their children, whether it is possible to provide medical treatment, etc., and they cannot be viewed as having consented to their free and genuine intent. Accordingly, the defendant's act cannot be justified solely on the ground that there was the formal consent of the persons affected by Hansen's disease including the plaintiffs.

4) Furthermore, abortion surgery conducted on a pregnant woman is more severe than physical abuse and aggression, and is highly likely to be subject to criticism as an infringement on the life rights of a fetus formed, as well as the mental suffering of a woman who is deprived of maternity due to enforcement by rule of experience is more serious than that of other types of tort in general.

5) In addition, a case that had been subjected to a decision made by the victim under the Act on the Abuse of Persons Affected by Persons Affected by Hansen’s Disease has passed since 30 to 60 years since the occurrence of the damage, and the Act on the Abuse of Persons Affected by Hansen’s Disease also aims to uniformly recover from the damage, and there are special circumstances, such as where the number of victims is very large and nationwide distribution, equity between the victims should also be considered when determining the amount of consolation money.

However, in Supreme Court Decision 2014Da230535 Decided February 15, 2017, the Defendant’s appeal was dismissed, and the judgment which set the consolation money for persons affected by Hansen’s disease was finalized at a significantly higher amount than the amount determined by the lower court. Therefore, there is no special circumstance to find out the amount of consolation money differently from the above case.

D. Examining these circumstances in light of the legal principles as seen earlier, even though the amount of consolation money is to be determined by the discretionary authority of the fact-finding court, the lower court should be deemed to have exceeded the bounds of its discretion, contrary to the ideology of fair sharing of damages and the principle of equity, by not taking into account all circumstances that should be taken into account in the calculation of consolation money.

In the end, the court below erred by misapprehending the legal principles on the calculation of consolation money, thereby exceeding the bounds of its discretion, and the plaintiffs' ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of

Justices Kim Shin (Presiding Justice)