In the above cases under Articles 166(1) and 766(2) of the Civil Act, where the Constitutional Court seeks compensation for damages caused by a public official’s unlawful performance of duties in accordance with Article 166(1) and 766(2) of the Framework Act on the Settlement of Former History for Truth and Reconciliation that Article 2(1)3 (a) and 4 (a) of the Act on the Settlement of Truth and Reconciliation is in violation of the Constitution, the part applied to the above cases is in violation of the Constitution.” In the above subparagraphs 3 and 4, where the Constitutional Court seeks compensation for damages caused by the public official’s unlawful performance of duties, whether Article 166(1) and 766(2) of the Civil Act or Article 96(2) of the National Finance Act applies to the right to claim compensation for damages (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State Compensation Act; Articles 166(1) and 766 of the Civil Act; Article 96(2) of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050, Oct. 4, 2006); Article 96(2) of the National Finance Act (see current Article 96(2) of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 91Nu1462 Decided February 14, 1992 (Gong1992, 1065) Supreme Court Decision 96Nu1627 Decided April 26, 1996 (Gong1996Sang, 1767), Constitutional Court en banc Decision 2014Hun-Ba148, 162, 219, 219, 466, 2015Hun-Ba50, 440, 2014Hun-Ba223, 290, 2016Hun-Ba419 Decided August 30, 2018 (Hun-Ba263, 1394)

Plaintiff (Re-Appellant) 1 and 6 others (Law Firm LLC, Attorneys Cho Yong-hwan et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Park Jong-won, Counsel for defendant-appellant)

Seoul High Court Decision 2018ReNa 20217 decided April 4, 2019

All appeals are dismissed. The costs of appeal are assessed against Defendant (Re-Defendant).

The grounds of appeal are examined.

1. A. According to Article 8 of the State Compensation Act, Articles 166(1) and 766(1) and (2) of the Civil Act, Article 96(2) and (1) of the National Finance Act / [Article 96(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 4102, Mar. 31, 1989; hereinafter the same shall apply) / [Article 96(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 8050, Oct. 4, 2006; hereinafter the same shall apply] of the State Compensation Act, the victim or his legal representative becomes aware of the damage and the perpetrator (the subjective starting point under Articles 166(1) and 766(1) of the Civil Act), the extinctive prescription of the State Compensation Act shall be applied for three years or more from the date he/she committed an illegal act (the objective starting point under Articles 166(1) and 76(2) of the Civil Act).

However, 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 the 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 suspicion of serious human rights violations and manipulation” in Article 2(1)3 of the same Act are unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, etc.; hereinafter “instant decision of unconstitutionality”).

B. The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a request for adjudication on the constitutionality of the same kind, or where the request for adjudication on the constitutionality of the same kind is made to the court before the decision of unconstitutionality is made, but it does not extend to all general cases where the law or the provision of the law becomes the premise of the judgment and continues to the court (see, e.g., Supreme Court Decisions 91Nu1462, Feb. 14, 1992; 96Nu1627, Apr. 26, 196).

Therefore, in a case where the decision of unconstitutionality of this case becomes effective, Article 2(1)3 of the previous Bankruptcy Adjustment Act or Article 166(1) and Article 766(2) of the Civil Act does not apply to the claim for damages arising from a public official’s unlawful performance of his/her duties in relation to “the case of mass sacrifice or manipulation of serious human rights violations” under Article 2(1)4 of the previous Bankruptcy Adjustment Act, and Article 96(2) of the National Finance Act (Article 96(2) of the previous Budget and Accounts Act (Article 96(2) of the former Budget and Accounts Act), which provides for the period of extinctive prescription for the right to payment of money to the State for five years, does not apply to cases where the said objective starting point is premised on such objective starting point.

2. On the grounds stated in its reasoning, the lower court acknowledged that the Defendant (hereinafter “the Defendant”) violated the duty to protect the fundamental human rights of the citizens and committed tort such as illegal arrest and detention, illegal investigation and trial against the Plaintiff (hereinafter “Plaintiff”) and thus, pursuant to Article 2(1) of the State Compensation Act, is liable to compensate for consolation money for emotional distress losses suffered by the Plaintiffs 1 and their families. The effect of the decision of unconstitutionality of this case is under the premise that the Plaintiffs filed an adjudication on constitutional complaint pursuant to Article 68(2) of the Constitutional Court Act, which is the pertinent case, of which the Plaintiffs filed an adjudication on constitutional complaint pursuant to Article 68(2)4 of the Constitutional Court Act, the lower court rejected the Plaintiffs’ claim for damages due to the Defendant’s unlawful performance of duties by the public official, as long as Article 166(1) of the Civil Act and Article 766(2) of the former Act were based on the objective starting point of calculating the statute of limitations under Article 2(1) and 66(2) of the former Budget Act, and its subjective period of the right to claim for damages against the State.

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

3. Therefore, all appeals are dismissed, and the 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 Kim Jae-hyung (Presiding Justice)