Where a person who has been convicted on the basis of evidence, etc. collected by an investigation agency due to an illegal act, etc. files a claim against the State for compensation for damage, the defense of extinctive prescription by the State of the debtor becomes an abuse of rights, and the considerable period of time for the creditor to prevent the State from protest

In a case where a public prosecution was instituted based on evidence, etc. collected by a State agency in the course of investigation, and a final and conclusive judgment of conviction was rendered later, and the existence of grounds for retrial became final and conclusive after a judgment of innocence became final and conclusive in the retrial procedure, the obligee cannot expect the State to claim damages until the judgment of innocence becomes final and conclusive in the retrial procedure. Therefore, barring any special circumstance, the obligee’s defense of the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of trust and good faith. In such a case, barring any special circumstance, the obligee shall exercise the right within six months from the date when the judgment of innocence becomes final and conclusive and conclusive, which is equivalent to the suspension of prescription under the Civil Act. In such a case, whether there was a claim for damages within the period of six months from the date when the judgment of innocence became final and conclusive, the obligee can first claim damages under the Criminal Compensation Act, which can be deemed as a more simple procedure (see Article 2 of the Enforcement Decree of the Criminal Compensation Act). However, the amount of damages claim should be determined within six months from the final and conclusive period of extinctive prescription.

Articles 2, 766(1) of the Civil Act, Article 2(1), and 8 of the State Compensation Act, Article 96 of the National Finance Act, Article 5(1) and (2), and Article 6(3) of the Criminal Compensation and Restoration of Honor Act, Article 2 of the Enforcement Decree of the Criminal Compensation and Restoration of Honor Act

Plaintiff 1 and 3 others (Law Firm Shin, Attorneys Oh Jeong-tae et al., Counsel for the plaintiff-appellant)

Korea

Daegu High Court Decision 2012Na20384 decided January 30, 2013

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

In calculating consolation money due to a tort, consideration of the victim's circumstances, such as the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim's intentional or negligent act, motive and cause of the harmful act, and attitude of the perpetrator after the tort, etc. also conforms to the principle of fair liability for damages. Considering such various circumstances, the court may determine consolation money at its own discretion (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 199; 2007Da7149, Dec. 24, 2009). Meanwhile, in exceptional cases where compensation liability for consolation money due to a tort should be calculated from the date of the closure of arguments in fact-finding proceedings, it is necessary to determine consolation money at the time of the victim's occurrence of human rights violations (see, e.g., Supreme Court Decision 201Da7149, Dec. 24, 2009).

In light of the above legal principles, reasoning of the judgment below, and the records, the amount of consolation money of this case recognized by the court below cannot be deemed to be undermining the principle of equity to the extent that it deviates from the limits of discretion of the fact-finding court. Furthermore, it is not recognized that the court below erred in the misapprehension of legal principles or law as otherwise alleged in the ground of appeal by the plaintiff.

2. As to the Defendant’s ground of appeal

A. The statute of limitations proceeds from the time when an objective right arises and it is possible to exercise the right, and does not proceed during the period during which the right is not possible. Here, the term “non-exercise of the right” refers to a disability as to the exercise of the right, for example, where the period has expired or is not fulfilled, and where the exercise of the right is practically difficult. However, the exercise of the defense right on the ground of the statute of limitations is governed by the principles of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act, and is not subject to the prohibition of abuse of rights. Thus, in special circumstances where the exercise of the right cannot be expected due to a de facto obstacle that makes it impossible to exercise the right objectively before the statute of limitations expires, the obligor’s assertion for the completion of the statute of limitations is not permissible as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 9

Meanwhile, even in cases where there exists an objective disability that makes it impossible to expect a creditor to exercise his/her right as above, if such disability has been terminated, the obligor’s defense of extinctive prescription can be prevented only within a reasonable period from exercising his/her right. Whether the right can be deemed to be exercised within a reasonable period should be determined by comprehensively taking into account various circumstances, such as the relationship between the obligee and the obligor, the cause of the claim for damages, the cause of the obligee’s delay in exercising his/her right, and the progress from the time when the obligee filed a lawsuit claiming damages. However, inasmuch as the extinctive prescription system is based on the ideology of achieving legal stability and remedy for the difficulty in proving it, denying the validity of extinctive prescription based on the principle of trust and good faith should be limited to very exceptional. Therefore, the “reasonable period” of the exercise of right should be limited to a short period corresponding to the suspension of prescription under the Civil Act, barring special circumstances. In particular, even in cases where it is inevitable to extend the period due to special circumstances, it should not exceed three years, a short period of extinctive prescription period (see Supreme Court en banc Decision 201216Da.

B. In a case where a State agency received a public prosecution based on evidence, etc. collected by an illegal act in the course of investigation, and a final judgment of conviction was rendered, but the existence of grounds for retrial became final and conclusive after the judgment of innocence became final and conclusive in the retrial procedure, and claims damages against the State due to an illegal act of the State agency, etc., it shall be deemed that there was a de facto obstacle that the obligee could not expect the claim for damages until the judgment of innocence becomes final and conclusive in the retrial procedure. Therefore, the defense of the completion of extinctive prescription by the State, which is the debtor, cannot be allowed as an abuse of rights against the principle of good faith. However, barring special circumstances, the obligee

In such a case, the determination on the basis of whether a lawsuit was filed as to whether a person has exercised his/her right within the said period ought to be based on whether a claim for damages was filed. However, where a judgment of innocence has become final and conclusive, a creditor may first file a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”) which can be said to be more simple procedures prior to a claim for civil damages. However, the amount of criminal compensation shall be calculated by taking into account all the relevant circumstances, such as the type of detention and the long term of detention, and the amount of compensation per day of detention shall be calculated by setting the minimum daily wage amount under the Minimum Wage Act of the year in which the cause for the claim for damages occurred to five times the amount thereof (Article 5(1) and (2) of the Criminal Compensation Act, and Article 2 of the Enforcement Decree thereof). In addition, Article 6(3) of the Criminal Compensation Act provides that “When a person entitled to damages under the same Act has received compensation for the same cause, the amount of such compensation shall be determined after deducting the amount of compensation.”

Therefore, even if a creditor did not file a lawsuit claiming compensation within six months from the final judgment of innocence in a retrial, where a claim for compensation under the Criminal Compensation Act was filed within such period, the "reasonable period" of the exercise of the right to prevent the defense of extinctive prescription exists, and at that time, where a claim for compensation is filed within six months from the final judgment of innocence in a retrial, the claim for compensation can be deemed to have been exercised within a reasonable period. However, even in this case, the period shall not exceed three years from the final judgment of innocence in which the ground for de facto disability in the exercise of the right becomes objectively extinct.

C. According to the reasoning of the judgment of the court of first instance and the records quoted by the court below, ① the plaintiff 1 was arrested and detained by the investigator belonging to Daegu Security Unit on July 19, 1983, and led to confessions as to the suspected facts. Based on these facts, the defendant was prosecuted for violating the National Security Act due to the crime of misunderstanding and encouraging anti-government organizations, and thereby, the defendant was convicted of the whole facts charged at the Daegu High Court on June 8, 1984 and then convicted of the defendant 12 years and suspension of qualifications at that time. ② The court of first instance against the plaintiff 1 was found guilty on 20 months after the 10-year new judgment became final and conclusive, ② The court of first instance against the plaintiff 2 was convicted of the above facts that the defendant 1 was found guilty, and the court of second instance against the defendant 1 and the defendant 2 was found guilty on 10-year new judgment on January 19, 2009.

Examining such factual relations in light of the legal principles as seen earlier, it is reasonable to deem that there was an objective disability that the Plaintiffs could not expect the Plaintiffs to exercise the right to claim damages of this case against the Defendant until January 27, 2011, which became final and conclusive. Moreover, Plaintiff 1 filed a claim for criminal compensation under the Criminal Compensation Act within six months from the date on which the ground for such disability became final and conclusive, and the Plaintiffs filed the instant lawsuit within six months from the date on which the judgment on criminal compensation became final and conclusive, and it is reasonable to deem that the Plaintiffs exercised the right within a reasonable period that could prevent the Defendant’s defense against the statute of limitations

Therefore, although some of the reasoning of the court below on this part is insufficient, the court below rejected the defendant's defense of extinctive prescription by deeming it as an abuse of rights against the principle of good faith. In so doing, contrary to the allegations in the grounds of appeal, there is no error of law by misunderstanding the legal principles on the abuse of rights

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)