[1] The extinctive prescription period of the right to claim damages against the State in a case where there was a truth-finding decision by the “Committee for the Settlement of History for Truth and Reconciliation” confirming the victims of the case of mass sacrifice before and after the Korean War

[2] Whether it is permissible for an obligor to assert the completion of the extinctive prescription in a case where an obligor, who had shown the same attitude that the obligor did not invoke the prescription after the completion of the extinctive prescription, exercised his/her right within a reasonable period from the obligor’s trust (negative), and the standard for determining whether the obligor had exercised his/her right within a reasonable period

[3] Whether the obligor’s assertion of the completion of extinctive prescription constitutes an abuse of right against the obligee’s exercise of rights within three years from the time when the Commission established a truth-finding decision regarding the case of collective sacrifice by civilians before and after the Korean War (negative)

[1] Article 750 of the Civil Act, Articles 2(1) and 8 of the State Compensation Act, Article 32 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951) (see current Article 96 of the National Finance Act), Articles 2 and 26 of the Framework Act on Settlement of History for Truth and Reconciliation / [2] Articles 2 and 162 of the Civil Act / [3] Articles 2, 750, 76(1) of the Civil Act, Articles 2(1) and 8 of the State Compensation Act, Article 32 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951) (see current Article 96 of the National Finance Act), Articles 2 and 26 of the Framework Act on Settlement of History and Reconciliation for Truth and Reconciliation

[1] [2] [3] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077) / [2] Supreme Court Decision 2009Da66969 Decided September 8, 2011 (Gong2011Ha, 2046), Supreme Court Decision 201Da36091 Decided October 13, 201 (Gong201Ha, 2344)

Plaintiff 1 and four others (Attorney Park Jin-jin, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2012Na9756 decided March 14, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. With respect to the investigation of the reorganization committee and the assertion of inherent limits in the decision-making, the gist of the defendant's argument in the grounds of appeal is that the reorganization committee established by the Framework Act on the Settlement of History for the Truth and Reconciliation (hereinafter "Reconciliation committee") has a political purpose of promoting the reconciliation and integration of the people through the truth-finding of the past history. The investigation and decision made by the reorganization committee conducted by ascertaining the overall truth of the past history of the past, and it is not to individually determine the victims who become the plaintiff and determine their legal responsibilities in the state compensation lawsuit, and thus, the investigation and decision made by the reorganization committee cannot serve as the basis for the fact-finding of the state liability in the civil procedure.

However, under the Korean Civil Procedure Act that adopts the principle of free evaluation of evidence, it cannot be readily concluded that the outcome of the investigation by the reorganization committee or the truth-finding decision is inadmissible, and whether the reorganization committee adopts the investigation and decision, etc. as evidence belongs to the discretion of the fact-finding court (see Supreme Court Decision 2009Da37138, 37145, Sept. 10, 2009, etc.).

Therefore, the court below affirmed the judgment of the court of first instance, which held that the court below maintained the evidence No. 1 (the truth-finding report of the case of sacrifice by Yangyang-gun in Yangyang-do), evidence No. 11-5 (the evidence No. 1, No. 2), evidence No. 11-13 (the evidence No. 3) and evidence No. 11-14 (the evidence No. 14 of the evidence No. 1 of the witness) and the evidence No. 11-14 (the evidence No. 1 of the witness), based on the comprehensive consideration of each of the above evidence and the remaining evidence, the defendant police officer et al. committed an occupation against the people's occupation force in Yangyang-gun, Gyeonggi-do around Oct. 10, 1950, it was justified in the ground of appeal No. 1 of this part.

2. As to the assertion of misapprehension of legal principles as to extinctive prescription

A. The claim for damages against the State arising from tort is extinguished by prescription unless it is exercised for five years from the date of the tort (amended by Act No. 42 of Apr. 7, 1921, and repealed by Act No. 217 of Sept. 24, 1951). Article 32 of the former Accounting Act prior to repeal by Act No. 217 of Sept. 24, 1951 (see Supreme Court en banc Decision 2012Da2819, May 13, 2013). Since the period of short-term extinctive prescription under Article 766(1) of the Civil Act is different from the period of short-term extinctive prescription under Article 76(1) of the former Accounting Act, the claim for damages has already been completed at the time of five years from the date of the occurrence of damage to the who made a sacrifice (hereinafter “the case of sacrifice before and after the Korean War”).

In light of the above legal principles, the extinctive prescription of the Plaintiffs’ claim for damages is already completed at the lapse of five years from the date of the deceased’s death, as seen earlier, since the deceased’s sacrifice was made in the case of sacrifice in the Yang Pyeong Station around October 1950.

B. Inasmuch as the exercise of the right by reason of extinctive prescription is subject to the principle of good faith and the prohibition of abuse of rights, which are the major principle of the Civil Act, it shall be determined by comprehensively taking into account the following: (a) an obligor engaged in trust by the right holder; and (b) an obligee exercised his/her right within a considerable period of time that could expect the completion of extinctive prescription; (c) an obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of rights against the principle of good faith (see, e.g., Supreme Court en banc Decision 2009Da66969, Sept. 8, 201). Whether an obligor exercised his/her right within a considerable period of time, whether there was a genuine intent to achieve the obligee’s exercise of right by means of the act, etc.; (d) the obligor’s genuine purpose and genuine intent to achieve the obligee’s exercise of right; and (e) whether there was any special circumstance to deny the completion of extinctive prescription by taking into account the foregoing principle of good faith should be limited to the period of extinctive prescription.

However, according to the reasoning of the judgment below, the Court affirmed the truth-finding decision of this case against the deceased on February 16, 2009, and the plaintiffs filed the instant lawsuit against the defendant on March 7, 2012, thereby exercising their rights. Thus, it is apparent that the plaintiffs filed the instant lawsuit beyond three years from the date of the truth-finding decision of this case.

Examining these facts in light of the legal principles as seen earlier, it cannot be said that the Defendant’s defense of extinctive prescription constitutes abuse of rights against the principle of good faith.

C. Nevertheless, the lower court rejected the Defendant’s defense of extinctive prescription on the grounds that even before the date of the truth-finding decision of the instant case, the Plaintiffs could exercise their rights objectively or it is difficult to deem the damage and the perpetrator to have known. In so doing, the lower court erred by misapprehending the legal doctrine on extinctive prescription, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)