[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, as the “the Committee for the Settlement of History for Truth and Reconciliation” decided as 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)

[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 the Settlement of History for Truth and Reconciliation / [2] Articles 2, 750, and 76(1) of the Civil Act / [1] Articles 2(1) and 8 of the State Compensation Act, Article 2(1) and 8 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951), Article 32 (refer to Article 96 of the current National Finance Act), Article 19(1), Article 22(1), Article 22(1), and Article 26 of the Framework Act on the Settlement of History for Truth and Reconciliation

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

Plaintiff 1 and six others (Law Firm Seom, Attorney Park Do-young, Counsel for the plaintiff-appellant)

Korea

Gwangju High Court Decision 2012Na4601 decided December 5, 2012

All appeals are 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 by the said Act (hereinafter “Reconciliation Committee”), the content of the investigation report, etc., the inspection report by the Reconciliation Committee may constitute eficient evidence in a civil lawsuit claiming damages against the State, barring any special circumstance. However, the investigation report by the Reconciliation Committee shall be based on evidence, such as individually examining the relevant part of the investigation report regarding whether an individual party is a victim of the instant case. However, the investigation report by the Reconciliation Committee cannot be said to have probative value that either has the same effect as or does not permit counter-verification as the presumption of legal fact, even during that procedure (see Supreme Court en banc Decision 2012Da202819, May 16, 2013).

B. According to the reasoning of the judgment below, the court below partially accepted the judgment of the court of first instance and recognized the facts as stated in its reasoning. Then, if the reorganization committee confirmed the deceased non-party 1 and the deceased non-party 2 (hereinafter “the deceased”) who was the deceased, as the victim of the case, in the area south-west-west, the court should respect the above decision unless there is any special evidence to deem that the above decision was erroneous, and partly accepted the plaintiffs’ claim for damages.

C. In light of the above legal principles, the above reasoning of the court below is partially inappropriate. However, the court below's fact-finding and judgment is just, and contrary to the allegations in the grounds of appeal, there were no errors 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 principle of the Civil Act. Therefore, in a case where an obligor, who had shown the same attitude that the obligor would not invoke the prescription after the completion of extinctive prescription, and where an obligee exercised his/her right within a considerable period of time that could have expected to exercise the right, 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). Whether an obligor exercised his/her right within a considerable period of time should be determined by comprehensively taking into account the relationship between the obligee and the obligor, the content, motive and circumstance of the obligor’s act given trust, the purpose and genuine intent of the obligor to achieve by such act, and whether there were any special circumstances where

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 2012Da20

B. According to the reasoning of the judgment below and the record, the court below held that, after the enforcement of the Act, there was a request for finding the truth against the deceased, and the reorganization committee under the defendant also confirmed the deceased as a victim on April 6, 2009. The defendant did not take any affirmative action against the defendant, even if there were circumstances that the plaintiffs expected to withdraw the measures for restoring the deceased’s honor and compensating for damages through legislation, following the provisions of the Act on the Settlement of History after the truth-finding and the recommendation of the reorganization committee, the defendant did not take any action. Thus, the plaintiffs filed a lawsuit against the defendant for claiming damages of this case only at the time when 2 years and 11

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. As to the third ground for appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below can find that the court below calculated the amount of consolation money in consideration of all the circumstances, such as mental suffering suffered by the deceased and their bereaved family members, and it seems that the amount of consolation money is too excessive. Therefore, there is no error of law in the

4. Conclusion

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 Lee Sang-hoon (Presiding Justice)