[1] The probative value held by the committee’s investigation report in a case where the bereaved family files a civil lawsuit seeking damages against the State based on the determination of the victim of the case subject to investigation of truth by the committee’s determination that the person subject to investigation of truth is the victim of the case subject to investigation

[2] Whether it is permissible for the State to claim the completion of extinctive prescription in a case where “the Committee on the Settlement of History for Truth and Reconciliation” established a truth-finding procedure by which the victim, etc. confirmed or presumed the person subject to request the truth-finding as a victim and exercised his/her rights within a considerable period of time based on the determination thereof (negative)

[3] The limits of discretion of the fact-finding court in calculating the amount of consolation money for non-property damage suffered by tort, and the matters to be considered when calculating consolation money for the victims of the Korean War that had undergone the truth-finding process under the Framework Act on the Settlement of History before and after the Korean War, which was established under the Framework Act on

[1] Articles 202 and 288 of the Civil Procedure Act; Article 750 of the Civil Act; Article 2(1) of the State Compensation Act; Articles 1, 2, 3, 19, 23, 26, 34, and 36 of the Framework Act on Settlement of History for Truth and Reconciliation / [2] Articles 2, 750, and 76(1) of the Civil Act; Articles 2(1) and 8 of the State Compensation Act; Article 2(1) of the former Accounting Act; Article 82 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951); Article 19(1) and 22(1) of the Framework Act on Settlement of History History for Truth and Reconciliation / [3] Articles 39 and 76(1) of the Civil Act

[1] [1] [2/3] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077)

Plaintiff 1 and 8 others (Law Firm Seom, Attorney Lee Lee-ia, Counsel for the plaintiff-appellant)

Korea

Gwangju High Court Decision 2012Na5406 decided November 28, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In full view of the purpose and contents of the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”), the method of performing the activities of the former History Settlement Committee for Truth and Reconciliation established thereby (hereinafter “Reconciliation Committee”), and the contents of the investigation report, etc., the inspection report by the Settlement Committee shall also constitute eficial evidence in a civil lawsuit claiming damages against the State, barring special circumstances. However, the investigation report by the Settlement Committee shall be based on evidence, such as individually examining the relevant part of the investigation report regarding whether the victim of the relevant case is a victim, and it shall not be deemed that the investigation report or disposition by the Settlement Committee has probative value that either has the same effect as or does not permit counter-proof of the legal presumption of fact (see Supreme Court en banc Decision 2012Da202819, May 16, 2013).

B. Examining the reasoning of the lower judgment in light of the record, the lower court partially admitted the first instance judgment and recognized the facts as indicated in its reasoning, and subsequently, where the Reorganization Commission confirmed the deceased non-party 1, 2, 3, and 4 (hereinafter “the deceased”) who was the deceased, as the victim of the case of sacrifice against the military, the lower court should respect the truth-finding decision, and should not request proof equivalent to that taken place in general judicial process, and partly accepted the Plaintiffs’ claim for damages.

In light of the above legal principles, the above explanation by the court below is inappropriate. However, in light of the above legal principles, the fact-finding and judgment by the court below is just, and there is no error in the misapprehension of legal principles as to the principle of evidence judgment and the principle of burden of proof, or in violation of the principle of free evaluation of evidence in violation of logical and empirical rules.

2. Regarding ground of appeal No. 2

A. The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, if an obligor had engaged in trust by the right holder, and an obligor exercised his/her right within a considerable period of time that could have anticipated the completion of extinctive prescription, the 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 Decision 2009Da66969, Sept. 8, 201). Determination of whether an obligor exercised his/her right within a considerable period of time should be made by comprehensively taking into account the relationship between the obligee and the obligor, the content, motive and background of the obligor’s act given trust, the obligor’s genuine purpose and genuine intent that the obligor intended to achieve through the act, and whether there were any special circumstances that the obligee had to delay

Unless there are any restrictions on the method of enforcement while the State, through the enactment of the Act on the Settlement of History, declares the historical facts before several hundred years and declares to withdraw measures to recover damage to the victims and their bereaved family members, it can only be deemed that the victim, etc. made a declaration that he/she would ultimately accept the method of judicial relief seeking compensation by the method of a claim for state compensation, barring any special circumstance. In addition, the legal meaning derived from the fact that the intent to refuse compensation by asserting the new extinctive prescription in a specific litigation case lies in the expression of the intent to refuse compensation.

Therefore, in a case where the State received an application to verify the truth of a victim who is subject to the application of the Act on the Settlement of History and conducted a truth-finding decision that confirmed or presumed the victim, it is reasonable to deem that there are special circumstances where the victim or his/her bereaved family members exercise their rights within a considerable period of time based on such decision that the Defendant would not claim the extinction of rights at least due to the completion of extinctive prescription, and therefore, the State’s assertion of the completion of extinctive prescription against the victim constitutes an abuse of rights against the principle of trust and good faith, and thus, is not allowed (see Supreme Court en banc Decision 2012Da

B. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination was based on the fact that, after the enforcement of the Act on the Settlement of History, there was a request to verify the truth of the deceased, and the reorganization committee under the Defendant’s control confirmed the deceased as a victim of the civilian sacrifice case of the Young-gun, on June 29, 2010. Following the findings of the fact-finding, the provisions of the Act on the Settlement of History after the findings of the fact-finding and the recommendation of the reorganization committee, etc., the Defendant did not take any affirmative measures, but did not take any action against the Plaintiffs to withdraw the deceased’s restoration of honor and compensation for damages, and the Plaintiffs filed a lawsuit against the Defendant for the instant damages

Examining these facts in light of the legal principles as seen earlier, the Plaintiffs, the bereaved family members of the deceased, appear to have filed a lawsuit claiming damages of this case within a reasonable period from the date of the truth-finding decision of this case, and the Defendant’s assertion on the completion of extinctive prescription as to the Plaintiffs’ claim for damages constitutes an abuse of rights

C. Therefore, the decision of the court below that rejected the defendant's defense of extinctive prescription is just in its conclusion and there is no error of law by misapprehending the legal principles as to the abuse of rights by the extinctive prescription defense or by failing

3. Regarding ground of appeal No. 3

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, but it does not mean that the judge's arbitrary discretion is allowed to calculate consolation money, so it does not mean that the calculation of consolation money must be limited to the amount that can be consistent with the general legal sentiment, and it goes beyond its limit, and it goes beyond the bounds of the fact-finding court's discretion to calculate consolation money that considerably goes against the ideology of fair and equitable apportionment of damages and the principle of equity. In addition, the Korean War following the truth-finding decision under the Act on the Settlement of History and History, was 60 years have passed since the time of the occurrence of the damage, and there were special circumstances such as the Act on the Settlement of History and History also pursuing a uniform recovery of the damage, as well as the number of victims, and there are also many special circumstances such as the number of victims being distributed across the country. Accordingly, in determining the amount of consolation money, the mutual equity between the victims and the number of bereaved family members claiming compensation should also be considered (see the above en banc Decision 2012012Da29).

In light of the above legal principles, even though multiple similar cases have already been determined, it is somewhat inappropriate for the court below to recognize consolation money by applying the substantially increased standard without disclosing other circumstances that could vary in the amount of consolation money in this case. However, considering the reasoning of the court below in light of the records, the amount of consolation money recognized by the court below is not to be deemed to be significantly contrary to the principle of equity, and there is no violation of law of deviating from the limits of the

4. Conclusion

Therefore, the appeal is 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.

Justices Park Poe-dae (Presiding Justice)