2014Da235172 Compensation (as stated)

1. A;

2. B

Korea

Seoul High Court Decision 2014Na2013028 Decided November 20, 2014

August 19, 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. As to the assertion of deviation from the bounds of the principle of free evaluation of evidence in tort recognition

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just to recognize that investigators, etc. belonging to the Defense Security Headquarters (hereinafter referred to as the "Security Headquarters") committed an illegal act against the plaintiffs, such as illegal confinement and harsh treatment, on the grounds as stated in its reasoning, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

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

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below acknowledged facts as stated in the judgment below based on the adopted evidence, and deemed that there was an objective disability that the plaintiffs could not expect to exercise the right to claim damages of this case against the defendant until the judgment of innocence of the plaintiffs became final and conclusive, and the plaintiff Eul filed the lawsuit of this case before the final and conclusive date of a new judgment that became final and conclusive, and the plaintiff A filed the lawsuit of this case within six months from the final and conclusive date of a new judgment that became final and conclusive, and the defendant's defense of extinctive prescription constitutes an abuse of rights against the principle of good faith. In so doing, the court below did not err by misapprehending the legal principles on

3. As to the assertion of deviation from discretion in the calculation of consolation money

A. According to the reasoning of the lower judgment and the record, the following facts are revealed. (1) The Plaintiffs were Korean nationals residing in the Republic of Korea’s nationality, and Plaintiff A was admitted to the graduate school C of the Busan National University on March 1977, after graduating from the University of Liz in March 1976, and Plaintiff B graduated from the University of Liz in March 197, 197, and Plaintiff B was admitted to the University of Libya University D of the Hanyang National University on March 197, 197.

(2) On March 197, 197, Plaintiff A was unable to become a teacher of and high school while graduating at a graduate school. On April 197, 197, Plaintiff B heard and recorded and kept the radio broadcast at the entrance of Plaintiff B at the entrance of Plaintiff B. On April 2, 1977, Plaintiff B’s extraction of important stimulities from among the recording to F.I.D. F. F. M. F., and the unification of Korea is the maximum of 30 years after the division of Korea, and the unification of Korea is no more than 50 days. The Republic of Korea, as South and North Korea, was issued a warrant of unification to the head of Korea, and the Republic of Korea was issued to Plaintiff B.C. 1, 197 for the first time of the unification of Korea, and the Republic of Korea was issued to Plaintiff B. 1, 197 for the first time of the unification of Korea, and the Republic of Korea was issued to Plaintiff C. 17, 197.

17. The plaintiff A’s investigation process was arrested to the security investigator without a warrant, and on May 12, 197

A detention warrant was issued. The Plaintiffs were subject to harsh acts such as adviser from security investigation officers, and made false statements, etc., and security investigation officers prepared the investigation records against the Plaintiffs in the name of the National Security Planning Department investigator.

(3) On June 18, 197, Plaintiff A was a espionage, the National Security Act violation, the violation of the anti-public law, and Plaintiff B was a violation of the anti-public law on June 18, 197.

6. On October 28, 1977, the Seoul Criminal Court, which was the first instance court, was indicted on the violation of the public law and the violation of the Presidential Emergency Decree No. 9. The Seoul Criminal Court convicted all the charges, and sentenced the plaintiff A to imprisonment for life and six years, respectively. The Seoul High Court, which was the appellate court, accepted only the unfair argument regarding the sentencing of the plaintiff B, and sentenced the plaintiff B to three years and six months. The Supreme Court dismissed the plaintiffs' appeal on June 13, 1978, and the judgment became final and conclusive. (4) The plaintiff A was released from the suspension of execution on August 14, 1984, and the plaintiff B was released from the parole on August 15, 1979.

(5) On November 17, 2009, the Plaintiffs filed a petition for review after receiving a findings of fact-finding at the Committee on the Settlement of History for the Truth and Reconciliation under the Framework Act on the Settlement of History (hereinafter “former History Settlement Act”). On December 22, 2011, the Seoul High Court convicted the Plaintiff of the violation of anti-public law arising from production of pro-enemy contents among the facts charged against the Plaintiff A, for three years of suspended sentence, and acquitted the Defendant of the remainder of the facts charged (Seoul High Court Decision 201No66 Decided December 22, 201), and the above judgment became final and conclusive by dismissing the Prosecutor’s appeal on May 10, 2012.

Plaintiff B also received the truth-finding decision and claimed a retrial, and the Seoul High Court rendered a judgment not guilty of all the facts charged on September 23, 201 (Seoul High Court Decision 2010No3 decided September 23, 201), and the above judgment became final and conclusive by dismissing the prosecutor’s appeal on May 9, 2013.

B. 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 the amount of consolation money as a matter of course to the extent consistent with the times and the general legal sentiment, and in the event that it goes beyond the limit to the fair sharing of damages and is obviously contrary to the ideology of equitable sharing of damages and the principle of equity, it would deviate from the bounds of the discretionary power held by the fact-finding court. The so-called past history case, which was followed by the truth-finding decision under the Act on the Settlement of History in the past, has been prolonged since the time when the damages were inflicted, and the past

In determining the amount of consolation money for the victims, equity among victims shall be considered as important and appropriate adjustment is also necessary according to the number of family members claiming compensation for damages (see Supreme Court en banc Decision 2012Da202819, May 16, 2013; Supreme Court Decision 2013Da20390, Jun. 26, 2014, etc.).

C. In light of the circumstances stated in its reasoning, the lower court acknowledged that: (a) the Plaintiff Party A, who was reinstated for about seven years and four months as consolation money due to the Plaintiff’s illegal act against the Plaintiff Party A, KRW 1.58 billion; (b) KRW 240 million for the Plaintiff Party B; and (c) KRW 2.14 billion for the Plaintiff Party B, who was the birthee, KRW 80 million; and (b) KRW 2.4 billion for the Plaintiff Party B, who was recovered for about two years and four months as consolation money due to the illegal act against the Plaintiff Party B, KRW 320 million for the Plaintiff Party B; and (c) KRW 60 million for the Plaintiff Party B; KRW 20 million for the Plaintiff Party B; and KRW 460 million for the Plaintiff Party B, who was a son, and KRW 20 million for the Plaintiff Party A, who was a son, KRW 20 million.

However, examining the reasoning of the judgment below in light of the above legal principles and records, ① the contents of the tort of this case, which is the reason for consideration in calculating consolation money, illegality and gravity, occupation and career of the plaintiffs at the time of the tort of this case, Plaintiffs' age and prison period, Plaintiffs' age and family relation, circumstances where compensation has been delayed for a long time compared to those of similar past history, and there is no evidence to prove that the Plaintiffs and their family members suffered much more mental distress and social discrimination compared to those of the victims of similar past history, and there is no evidence to prove that they were disadvantaged. ③ Rather, Plaintiff A provided investigation proviso by itself, such as listening to the radio broadcast of North Korea at the time of the retrial, preparing and delivering a letter to the head of Eschool, etc., which contains negative reasons to consider in the calculation of consolation money, ④ the amount of consolation money for the victims as well as the amount of consolation money for the past being found guilty due to the unique nature of the past history, and there is no special circumstance to recognize the Plaintiffs as being 1601 and 27.16.

10. We can see that the amount of consolation money recognized in the Supreme Court Decision 2014Da208361 is much more superior than that of consolation money.

Therefore, even though the amount of consolation money is to be determined at the discretion of the fact-finding court, the court below should not properly consider all circumstances that are inappropriate in the calculation of consolation money as the ground for increase or take into account, thereby deviating from the limitation of its discretion, which is remarkably contrary to the ideology of fair sharing of damages and the principle of equity.

Ultimately, the judgment of the court below is erroneous by misapprehending the legal principles on the calculation of consolation money.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Shin-chul

Justices Min Il-young

Justices Park Young-young

Justices Kim Jong-il