2019Da276307 Compensation, etc.

Plaintiff 1 and one other

Law Firm Hyi, Counsel for the plaintiff-appellant

Attorney Seo Jung-hee

Korea

Law Firm LLC (LLC)

[Defendant-Appellee]

Seoul High Court Decision 2019Na2016862 Decided September 18, 2019

November 26, 2020

All appeals are dismissed.

The costs of appeal are assessed against the defendant.

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

1. As to the assertion on tort liability (Ground of appeal No. 1)

The court below held that, although the plaintiffs were arrested and detained for committing the crime of violation of Emergency Decree No. 9 and were convicted of conviction, the court below held that the defendant is liable for damages caused by tort on the ground that the plaintiffs and related persons were convicted of the plaintiffs by making a statement that was not voluntary, despite the absence of proof of criminal facts, even though there was a State agency's illegal act, including illegal arrest, detention, harsh treatment, and coercion of unfavorable statements during the investigation process, and that there was no proof of criminal facts.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine regarding the establishment of State tort liability

2. As to the assertion on extinctive prescription (Ground of appeal No. 2)

A. 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 on the Settlement of History”) and Article 2(1)4 of the same Act that applies to “a group sacrifice case of a private person,” and “serious violation of human rights” under Article 2(1)4 of the same Act are unconstitutional (see, e.g., Constitutional Court Decision 2014HunBa148, Aug. 30, 2018) (see, e.g., Supreme Court Decision 2014HunBa148, Aug. 30, 2018). Such decision of unconstitutionality does not apply to a case where a lawsuit is pending in the court for compensation for damages sustained by a public official’s unlawful performance of duties under Article 2(1)3 or 766(2)4 of the former Act on the Settlement of History and Reconciliation and Reconciliation, etc. (see, e.g., Supreme Court Decision 2016019Da1616197.

B. Examining the reasoning of the lower court regarding the Defendant’s liability for damages, in light of the record, the Plaintiffs’ claim for damages in this case constitutes the State’s claim for damages incurred by public officials’ unlawful performance of duties in cases of serious infringement of human rights as referred to in Article 2(1)4 of the previous Bankruptcy Adjustment Act, and the Plaintiffs’ lawsuit was pending in the court prior to rendering a decision of the Constitutional Court 2014HunBa148, etc., and thus, Article 766(2) of the Civil Act or Article 71(2) of the former Budget and Accounts Act does not apply to the Plaintiffs’ claim for damages. Accordingly, the Plaintiffs’ claim for damages can only

However, according to the reasoning of the lower judgment and the record, the lower court’s judgment and the record revealed that the Plaintiffs were convicted of committing an offense in violation of Emergency Decree No. 9, which occurred during the investigation process, and the judgment of innocence against the Plaintiffs was finalized on August 2013 upon the Plaintiffs’ request for a review of conviction. In light of the foregoing, the Plaintiffs can be deemed to have recognized the facts constituting tort only after the judgment of innocence became final and conclusive in the retrial, and it is apparent in the record that the Plaintiffs filed the instant lawsuit within three years thereafter, and thus, the short-term extinctive prescription regarding the Plaintiffs’ claim was not completed.

The lower court’s conclusion that did not accept the Defendant’s defense of extinctive prescription is that it did not exhaust all necessary deliberations beyond the bounds of the principle of free evaluation of evidence, or that it did not err by misapprehending the legal doctrine on ex

3. As to the calculation of consolation money and damages for delay (Ground of appeal No. 3)

A. In calculating consolation money due to a tort, taking into account the circumstances on the part of the victim, such as the victim’s age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim’s intentional or negligent act, motive and cause of the harmful act, and attitude of the perpetrator after the tort, together with the circumstances on the part of the perpetrator, along with the principle of fair liability for damages. The court may determine the amount of consolation money at its own discretion by taking into account such various circumstances (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 1999; 2007Da7149, Dec. 24, 2009).

If considerable changes have occurred in comparison with the time of tort in monetary value, etc. at the time of the conclusion of arguments at the time of the conclusion of arguments at the time of the tort and the time of the conclusion of arguments at the time of the conclusion of arguments at the court of fact-finding, damages for delay of the compensation obligation due to tort shall be deemed to have occurred from the date of the conclusion of arguments at the court of fact-finding, which is the basis for calculating the compensation amount. In exceptional cases where damages for delay of the compensation obligation due to tort should be deemed to have occurred from the date of the conclusion of arguments at fact-finding, it is necessary to calculate the principal at the time of the conclusion of arguments at the time of the conclusion of arguments at fact-finding (see, e.g.,

Meanwhile, in the judgment of the court of first instance, the consolation money was calculated on the basis of the date of the closing of argument in the court of first instance, taking into account the circumstance where the compensation was delayed as above, but the appellate court did not calculate the consolation money again as of the date of closing of argument in the court of first instance and maintained the amount of consolation money in the judgment of the court of first instance

See Supreme Court Decision 2013Da205174 Decided January 29, 2015

B. The first instance court, taking into account the various circumstances as indicated in its reasoning, determined that consolation money is calculated as of the date of the closing of argument in the first instance trial and that such damages for delay occur from the date of the closing of argument in the first instance trial. The lower court upheld the first instance judgment. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of discretion of the fact-finding court in calculating consolation money, or by failing

4. As to the assertion on the benefit of a lawsuit (Ground of appeal No. 4)

A. Article 18(2) of the former Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movements (amended by Act No. 13289, May 18, 2015; hereinafter “former Act on the Compensation for Democratization Movement”) provides that “If an applicant consents to the determination of compensation, etc. under this Act, the determination of payment of compensation, etc. under this Act shall be deemed to have been made in accordance with the Civil Procedure Act for the damage suffered in relation to Democratization Movement.”

On August 30, 2018, the Constitutional Court rendered a decision that the part concerning mental damage caused by illegal acts, among "damage arising in relation to democratization movements" under Article 18 (2) of the former Democratic Compensation Act, is in violation of the Constitution (Supreme Court Decision 2014HunBa180, Aug. 30, 2018, etc.) (see, e.g., Supreme Court Decision 2014HunBa180, Aug. 30, 2018). The decision, as above, has lost its effect by declaring that "mental damage caused by illegal acts," among "damage suffered in relation to democratization movements, is unconstitutional, and has binding force on the court (see, e.g., Supreme Court Decision 2019Da249589, Oct. 29, 2020). Before such decision of unconstitutionality becomes effective, the Constitutional Court has rendered a decision of unconstitutionality as to whether Article 18 (2) of the former Democratization Compensation Act is unconstitutional (see Supreme Court Decision 2018Mo14, Apr. 29, 20194, etc.

B. The lower court determined that even if the Plaintiffs consented to a decision to pay compensation, etc. under the former Democratization Compensation Act and received compensation, etc., it cannot be deemed that a judicial compromise has been formed pursuant to Article 18(2) of the former Democratization Compensation Act even with respect to consolation money, which is mental damage, and that there is no benefit of lawsuit. The lower court did not accept the Defendant’

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine regarding the benefit of a lawsuit and the effect of unconstitutionality decision, or by failing to exhaust all necessary deliberations, thereby affecting the conclusion

5. Conclusion

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.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan