2013Da200315 Compensation for damages

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

Korea

Seoul High Court Decision 2012Na42538 Decided November 30, 2012

May 14, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment and the record reveal the following facts.

A. On November 28, 1982, while the plaintiff A was in office as a teacher of the Gunsan High School on April 1982, he was arrested and detained on the charge of the violation of the former Anti-Public Law and the National Security Act. On May 24, 1983, the court of first instance rendered a judgment suspending imprisonment with prison labor for eight months and suspension of qualification for one year, and the above plaintiff was released. The court of first instance, which was the appellate court of Gwangju, was detained again on the same day as imprisonment with prison labor for one year and suspension of qualification for one year on July 28, 1983 (hereinafter referred to as the "the judgment on review"), and the appeal against the judgment subject to a retrial was dismissed by the Supreme Court on December 27, 1983, and became final and conclusive.

B. On June 12, 2007, Plaintiff A filed a new trial with the Gwangju High Court under the Framework Act on the Settlement of Former History for the Settlement of History and Reconciliation (hereinafter referred to as the "Act on Settlement of History"). On November 25, 2008, the evidence which found the facts charged in the judgment subject to a new trial was collected by the police and the prosecutor's office's illegal investigation, and thus, it is not admissible because there is no voluntariness or evidence to prove the authenticity thereof. Other evidence was not directly related to the conviction or there was no credibility, and the above judgment was reversed, and the above judgment was pronounced not guilty (Seoul High Court Decision 2007No2500, Nov. 25, 2008; 2007No25010, Dec. 3, 2008; 2000, Seoul High Court Decision excluding Plaintiff A and his children's claim for compensation for damages, and 2008 U.V., Seoul High Court Decision 2000 million won.

D. While the above judgment became final and conclusive, the Plaintiffs filed the instant lawsuit claiming consolation money for the share of Plaintiff A’s parents and siblings, or their share of inheritance.

2. In case of ordering the payment of consolation money for non-property damage suffered by tort, a fact-finding court may determine at its discretion the amount of consolation money in consideration of various circumstances.

However, in determining the amount of consolation money, there is a limit that the court should determine it in the amount consistent with the times and the general legal sentiment, and in cases where it goes beyond its limit and is obviously contrary to the ideology of fair sharing of damages and the principle of equity, it would deviate from the limits of discretion of the fact-finding court.

The so-called past history case, which had undergone the truth-finding process under the Act on the Settlement of History, was over a long period since the occurrence of the damage; the Act on the Settlement of History also aims at the uniform recovery of the damage; and there are special circumstances, such as the number of victims. Therefore, equity among the victims is important in determining the amount of consolation money, and appropriate adjustment is also necessary according to the number of bereaved family members claiming compensation (see, e.g., Supreme Court en banc Decision 2012Da202819, May 16, 2013; Supreme Court Decision 2013Da20390, Jun. 26, 2014).

The court below acknowledged the claim of the plaintiffs of this case as consolation money of KRW 450 million in total of KRW 30 million for plaintiffs C, D, E, F, and G, each of which is the parent of the plaintiff Eul, and for plaintiffs C, D, E, F, and Dong, each of which is the sibling of the plaintiff Eul and Dong W, in consideration of the circumstances in its holding.

However, in light of the aforementioned legal principles, the consolation money of KRW 1.3 billion was already recognized by the victim and his/her spouse, and his/her children, who are the victim, as seen earlier. In other words, if the Plaintiff’s parents and siblings recognize consolation money of KRW 450 million in total, the consolation money of KRW 1.750 million would eventually be recognized by the Plaintiff and their families, which would considerably exceed the sum of the consolation money of the similar past history cases, and there is no material about special circumstances that the Plaintiff and their families were disadvantaged, such as mental suffering and social discrimination compared to the victims of similar past history cases, even if the consolation money amount is to be determined at the discretion of the fact-finding court, the lower court should not consider or take into account the inappropriate circumstances as the grounds for increase in the amount of consolation money, thereby making it difficult to view that it goes against the principle of equitable sharing of damages and the principle of equity.

Therefore, the court below erred by misapprehending the legal principles as to the calculation of consolation money, which affected the conclusion of the judgment. Therefore, the ground of appeal assigning this error is justified.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Supreme Court Decision 200

A person shall be appointed.