[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 Dondo Hospital, etc., which had been operated and controlled by the State for the treatment and isolation of patients suffering from Hansen's disease, and sought damages against the State on the ground that he/she had undergone the operation of the articles of association or the operation of abortion by a doctor belonging to the above hospital, etc., the case holding that the court below erred by misapprehending the legal principles on the calculation of consolation money for Party A, etc., without distinguishing the victim who had undergone the operation of the articles of association and the operation of abortion, and by misapprehending the discretionary power, thereby

[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)

Attached List 1 is as shown in the List of Plaintiffs (Seoul Law Firm et al., Counsel for the plaintiff-appellant)

Republic of Korea (Court of Law, Attorney Lee In-sea et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Na2017218 decided October 4, 2016

Of the part against the plaintiffs in the judgment of the court below, "the plaintiff" in the attached Table 2 of the amount of appeal as to each plaintiff as stated in the "amount of appeal" is reversed, and this 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. Defendant’s ground of appeal

A. As to the first ground for appeal

The court below acknowledged the fact that all the plaintiffs except the deceased non-party 1, non-party 2, non-party 3, non-party 4, non-party 5, and their litigants (hereinafter referred to as the "victim of this case") suffered from Hansen's disease, and the defendant was hospitalized in the National Dondo Hospital, Busan Family Hospital, National Ilsan Hospital, National Ilsan Hospital, National Ilsan Hospital (Organisms), Malsan Hospital, National Ilsan Hospital (Organisms), Mansan Dolsan Dolsan Dolsan Dolsan Dolsan Dolwon, etc. (hereinafter referred to as the "National Donsando Hospital, etc."), from 1947 to 1986, by its doctors, nurses, or medical assistants, etc.

In addition, based on the facts stated in its reasoning, the lower court acknowledged the Defendant’s State liability against the victims of this case on the ground that: (a) not only the Defendant’s child-related policy on the restriction of human rights by Hansen’s disease, the articles of association, and the surgery on pregnancy were not based on the legal basis; (b) not only did the appropriate means but also did not have the minimum degree of damage; and (c) violated the human rights, equality rights, right to self-determination, the right not to be damaged; and (d) the right not to privacy and the right to pursue happiness; and (e) even if the person affected’s Hansen’s disease was under a net order without any particular resistance, it is difficult to deem

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 Act was enacted on Finding the Truth of Persons Affected by Hansen's Disease (hereinafter "the Act") enacted on October 17, 2007; and (b) the decision was made on the victims of the instant case from September 30, 2009 to July 2013; (c) however, on August 6, 2009, the amendment was proposed to include the provision on compensation in the Act on the Protection of Persons Affected by Hansen's Disease (hereinafter "the Act") and was pending in the National Assembly; (d) the 18th National Assembly was abolished at the expiration of the term; and (e) the Finding Committee on Finding the Truth of Persons Affected by Hansen's Disease (hereinafter "the Act") issued around 2013, urged the victims of the instant case to make substantial compensation through the amendment, etc. of the Act on the Protection of Persons Affected by Hansen's Disease.

Based on the above facts, the lower court determined that there was a special reason to prevent the victims of this case from exercising their rights from exercising their rights until the time when the decision was made, or that there was a special reason to believe that the victims of this case, who were the debtor, were unable or considerably difficult to exercise their rights or to extinctive prescription before the expiration of the statute of limitations, and that the victims of this case, who were the victims of this case, would not claim the extinction of their rights upon the expiration of the statute of limitations. Furthermore, although the victims of this case anticipated to take appropriate measures to restore their reputation and compensate for damages in accordance with the provisions of the Act on the Damage Caused by Persons Affected by Hansen’s Disease and the Fact-Finding Committee, the victims of this case, who filed the lawsuit of this case before the lapse of three years from the date when the decision was made, had exercised their rights within a reasonable period of time. Furthermore, the lower court determined that it was reasonable to deem that the victims of this case, who were the victims of this case, had exercised their rights within the reasonable period of time.

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. As to the amount of consolation money among the plaintiffs' grounds of appeal

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 found the victims of this case's physical and mental suffering due to the illegality of the articles of association medication surgery and the pregnancy surgery performed by the victims of this case. However, the defendant established the Hansen's disease treatment system and provided an enlightenment policy to eliminate social prejudice and discrimination against Hansen's disease patients, provided them with help to treat patients suffering from Hansen's disease without compensation and lay the foundation for their lives, and provided them with assistance in the present life, such as ex gratia payments, medical allowances, and improvement of settlement villages, based on the calculation of consolation money, the court below determined consolation money for the victims of this case as follows: (a) mental damage suffered by the victims of this case is the same cause as the defendant's illegal infant restriction policy and the articles of association surgery, pregnancy surgery, and pregnancy surgery; and (b) it is difficult to see that there is a difference between the male and female suffering and the mental suffering.

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 there is no legal basis or legitimate legal basis for the articles of association administration operation and pregnancy saving operation performed by the Defendant’s doctor, etc. to the victims of this case who are affected by Hansen’s disease. The Defendant violated the right not to be damaged by the Constitution as a direct infringement on the body of the victims of this case, and the right not to be damaged by the Constitution, and the right to life, etc. of a fetus was infringed, and the victims of this case suffered a brupted family by practically prohibiting the pregnancy and delivery of persons affected by Hansen’s disease, as well as the right to pursue happiness by taking the brupted family.

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 risk, infection risk, treatment possibility, etc. of Hansen’s disease, which is medically revealed at the time of performing the instant Articles of Incorporation operations or climatic operations, it is difficult to recognize the appropriateness of the means or the minimum

3) Even if the victims of this case consented to the above alcohol, in order to be effective, consent should be obtained from the victims of this case, who are the victims of this case. The victims of this case can not necessarily agree due to social prejudice and discrimination against Hansen's disease, poor social, educational, and economic conditions in the state that they were not sufficiently explained about whether Hansen's disease was transferred, whether they are likely to be infected with children, and whether medical treatment is possible. Thus, the victims of this case can not be viewed as having consented to their free and genuine intentions. Accordingly, the defendant's actions cannot be justified just because they were formally consented by the victims of this case, including the victims of this case.

4) Furthermore, the abortion surgery performed on a pregnant woman is more severe than the physical abuse and the degree of aggression, and the possibility of criticism is very high as an infringement on the life rights of a fetus formed, and the mental suffering of a woman who is deprived of maternity due to enforcement by rule of experience is more serious than the mental suffering generally suffered by other types of tort.

5) In addition, when a case was subjected to a decision made by the victim under the Act on Persons Affected by Hansen’s Disease, the number of persons affected by Hansen’s disease was over 30 years to 60 years has passed since the occurrence of the damage, and the Act on the Protection, etc. of Persons Affected by Hansen’s Disease also aims at the uniform recovery of the damage, and there are special circumstances, such as the number of the victims is very large and nationwide distribution, equity between the victims should also be considered.

However, in Supreme Court Decision 2014Da230535 Decided February 15, 2017, the Defendant’s appeal was dismissed, and the judgment of the court below that determined the consolation money for the cases involving persons affected by Hansen’s disease as KRW 40 million for the victims of pregnancy during pregnancy and the victims of the Articles of Incorporation 30 million for the victims of the 30 million. Thus, it is difficult to find out any special circumstances that would change the consolation money in this 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.

Therefore, the court below erred by misapprehending the legal principles as to the calculation of consolation money, thereby adversely exercising its discretionary power, and the ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, each plaintiff listed in the “Plaintiff” column for the annexed Table 2 of the amount of appeal in the judgment below against the plaintiffs is reversed, and this 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 all participating Justices on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] Statement of Amount of Appeal: omitted

Justices Lee Ki-taik (Presiding Justice)