[1] The measures to be taken by the court in a case where it is difficult to accept the determination of the fact of the investigation report due to inconsistency with the probative value/ content of the investigation report of the committee, where the bereaved family files a civil lawsuit claiming damages against the State as a victim of the case subject to the investigation by the "Committee on the Settlement of History for Truth and Reconciliation";

[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the Civil Act / [1] Articles 2(1) and 8 of the State Compensation Act, Article 2(1) and 8 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951), Article 32 of the former Accounting Act (repealed by Act No. 82 of September 24, 195), Article 19(1), Article 22(1), Article 22(1), and Article 26 of the Framework Act on the Settlement of History for Truth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 (Law Firm Level, Attorneys Lee Gyeong-sk et al., Counsel for the plaintiff-appellant)

Plaintiff 2 and two others (Law Firm extent, Attorneys Lee Jae-sk et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2013Na2009046, 2009053 decided November 14, 2013

The part of the lower judgment against Plaintiff 2, 3, and 4 is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed. The costs of appeal by the Defendant are assessed against the Defendant.

1. The grounds of appeal by Plaintiffs 2, 3, and 4 are examined.

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 the activities of the former Settlement Commission for Truth and Reconciliation established by the said Act (hereinafter “Reconciliation Commission”), and the content of the investigation report, etc., an investigation report by the Settlement Commission shall also serve as a flexible evidence in civil litigation claiming damages against the State, barring any special circumstance. However, the content of the investigation report or the Disposition by the Settlement Commission does not have the same effect as the presumption of fact under the Act, nor have any probative value that does not allow any counter-verification, and the relevant part in the investigation report must be confirmed by evidence that the individual party is a victim of the relevant case. Furthermore, it appears that the contents of the investigation report per se are inconsistent with the determination of the individual subject matter of the application, or that the contents of the statement by bereaved families or witnesses, based on the recognition of the victim or presumption, are inconsistent with the fact confirmation of the investigation report, or where it appears that it is difficult to accept 2010 or 2016 witness evidence evidence inspection report, etc.

B. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) After investigating the case of the Masan, Changwon, and the Korean National Assembly of the Magsan Sea, the Reorganization Committee considered 77 persons as victims or presumed victims. A person whose body was born at sea or was not recovered on the ground that he was not aware of the place of sacrifice at sea was clearly included as victims in cases where the statement of a witness was supported, or where it was evident that he was a victim of the instant case due to the circumstances of the occurrence, call-up, and the occurrence of the case. In addition, even if a witness was unable to secure the statement, the Reorganization Committee included the case in which the body was recovered and the record of removal was similar

B. The Do Council affirmed the truth-finding decision of the deceased non-party 1 as the victim of the Masansan, Changwon, and the Korean Film Association case, on the ground that the deceased non-party 3 did not recover the body against the plaintiff 3's application for identifying the truth.

Meanwhile, in the case investigation report of the Masan, Changwon, and Jinhae National Report Federation of the Reorganization Committee, it stated that “The persons subject to preliminary inspection, such as the member of the Masan National Report Federation, etc., residing by the deceased non-party 1, were involved in the house at the house or detained in the warehouse of the Jinhae-si, Kim Jong-si, through the large place of origin, which was called up in July 1950 to August 1950, and was killed in the Ginhae-si, Haak-si, and the bereaved families were shot-si, and they were shot-si, and most of the cases occurred, discovered the relics of victims and participated in the creation of a joint grave in 1960.”

Applicant The statement of the plaintiff 3 (seven years of age at the time of the case) who is the deceased non-party 1's ancillary, prepared by the reorganization committee for the "written statement of reference (applicant)" refers to the following statements:

The deceased non-party 1 and the deceased non-party 2 and the deceased non-party 3 were released from the Korean War, and were killed in the field of the Kimhae-si, Kim Jong-si, etc. 10 households were 5 members of the Ganhae Police Station and the CIC. The deceased non-party 1 returned to the deceased non-party 1's father and the fifth degree of 5th degree of her mother. The deceased non-party 1 got out of 0 days after the deceased non-party 1 got out of 0 days of her funeral. The deceased non-party 2 got out of 10 years of her mother's funeral and got out of her mother's funeral. The deceased non-party 3 got out of her mother's funeral by the deceased non-party 1 and became out of her mother's funeral. The deceased non-party 1 got out of her mother's funeral by the deceased non-party 1. The deceased non-party 3 got out of her mother's funeral.

(v)the “A telephone conversation statement (Reference Witnesses) prepared by the reorganization commission on the part of the Plaintiff 2 (the age of 11 at the time of the incident) who is an infant of Nonparty 1, the network Nonparty 1, includes the following statements:

“The deceased Non-Party 1 was not considered to have come, and the deceased Non-Party 1, etc. was led from her mother at the night. At the time of July or August 1950, the deceased Non-Party 1, the deceased Non-Party 2, and the deceased Non-Party 3, etc. were led by the police for the reason that they joined the sidewalk in the village, and they were led by the deceased Non-Party 1, the deceased Non-Party 2, and the deceased Non-Party 3, etc., who were presumed to have been the police. After that, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 2, and the deceased Non-Party 3, etc. were sent to the next warehouse of the Jinhae-gu Seoul High School at night, Kimhae-si, and the Non-Party 1 was born to the Non-Party 3 at the time of their sacrifice. However, it seems that they would have been 2 times in the middle of the Korean War.”

⑹ 그리고 정리위원회에 의하여 경남 마산·창원·진해 국민보도연맹 사건의 희생자로 ‘확인’하는 진실규명결정을 받은 망 소외 4의 처인 선정자 소외 5와 참고인 소외 6에 대하여 정리위원회 측이 작성한 ‘참고인(신청인) 진술조서’에는 망 소외 2가 망 소외 4와 함께 희생을 당하였다는 취지로 기재되어 있다.

C. Examining these circumstances in light of the aforementioned legal principles, although the statement by Plaintiffs 3 and 2, who are the deceased non-party 1’s children, was relatively specific and directly related to the sacrifice by the deceased non-party 1, and the reorganization committee organized the general contents of the case by the deceased non-party 1 in the investigation report, and acknowledged considerable credibility, such as “the deceased non-party 1’s national reporter, etc., living in the large area where the deceased non-party 1 had been detained in the warehouse of the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, and the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, and the deceased non-party 1, the deceased non-party 1, the deceased non-party 1, and the deceased non-party 1, the deceased non-party 1, the deceased's statements or the deceased non-party 1, were found in compliance with the investigation report.

D. Nevertheless, the court below held that it is difficult to view that Plaintiff 3 was a victim of the case of the Masansan, Changwon, or the Korean National Report Federation on the ground that: (a) consistently stated that Plaintiff 3 was aware of the deceased Non-Party 1’s accession, (b) the date and time of sacrifice, and the place of sacrifice, and stated that the body was not recovered in the missing state; and (c) Plaintiff 2 made an unclear statement as to whether the police went to the deceased Non-Party 1; and (b) the contents of the statement made by Plaintiff 3 and 2 are not clear; and (c) the fact-finding and judgment of the court below are erroneous by failing to exhaust all necessary deliberations in violation of the principle of burden of proof or the principle of free evaluation of evidence, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

2. The defendant's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the first ground for appeal

Based on the evidence duly admitted, the court below acknowledged the fact that the court affirmed the fact that the deceased non-party 4 was the victim of the Masan, Changwon, and Jinjin-do National Assembly case as the reference witness through the investigation and confirmation of the transcript of the evidence, and determined that the deceased non-party 5, who was the wife of the deceased non-party 4, was the deceased non-party 4, and was the deceased non-party 4, who was the deceased non-party 4, and the deceased non-party 9, who was the deceased non-party 9, was the deceased non-party 4, who was the deceased non-party 9, and the non-party 4, who was the deceased non-party 8, was the deceased non-party 4, who was the deceased non-party 5, and the non-party 9, who was the deceased non-party 4, was the deceased non-party 9, who was the deceased non-party 4, and the deceased non-party 8, who was the deceased non-party 9, was the deceased party 4 and the deceased.

Examining the reasoning of the judgment below in light of the above legal principles and records, we affirm the fact-finding and judgment of the court below as 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, the burden of proof, or the

B. Regarding ground of appeal No. 2

(1) As a defense based on extinctive prescription is governed by the principle of trust and good faith and the prohibition of abuse of rights, the exercise of the right by reason of extinctive prescription is also subject to the control of the principle of trust and good faith and the prohibition of abuse of rights. Thus, if an obligor had engaged in trust by the right holder, and an obligor exercised his right within a considerable period of time that could expect 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 trust and good faith (see, e.g., Supreme Court Decision 2009Da66969, Sept. 8, 2011). Determination of whether an obligor exercised his 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 circumstance of the obligor’s act given trust, the obligor’s genuine purpose and genuine intent that the obligor intended to achieve through

Unless there are any restrictions on the method of enforcement while the State, through the enactment of the Act on the Settlement of History, again examines historical facts in several hundreds years prior to the enactment of the Act, and declares that it would withdraw measures to recover damage to victims and their bereaved family members, it shall be deemed that the victims, etc. have made a declaration that they would ultimately accept the method of judicial relief seeking damages through the method of a claim by the State, barring any special circumstance. In addition, the legal meaning derived from the said declaration lies in the purport that the State expressed its intent not to refuse compensation by asserting the new extinctive prescription in a specific litigation case.

Therefore, in a case where the State (the Defendant) received a request to verify the truth of the victim subject to the application of the Act on the Settlement of History and made a truth-finding decision that confirmed or presumed as a victim by the Defendant’s Affiliated Mediation Committee, it is reasonable to deem that there exist special circumstances where the victim or his/her bereaved family exercises their rights within a considerable period of time, and there is no reason to believe that the Defendant would not claim the extinction of rights at least due to the completion of extinctive prescription. Nevertheless, the Defendant’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

The court below found that the Plaintiff 1 and Nonparty 5 filed a lawsuit seeking compensation of this case against the Defendant on July 26, 2012 or September 10, 2012 after the date of the truth-finding decision, and determined that the Defendant’s assertion on the completion of extinctive prescription as to such claim constitutes abuse of rights against the principle of trust and good faith, as it did not take any affirmative measures after the fact-finding decision. The court below found that the Defendant filed a lawsuit seeking compensation of this case against the Defendant on November 26, 2012, when two years and eight months have elapsed since the date of the fact-finding decision, or when two years and ten months have elapsed since the date of the fact-finding decision, and determined that the Defendant’s assertion on the completion of extinctive prescription as to the claim for compensation of this case constitutes abuse of rights against the principle of trust and good faith.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to extinctive prescription or as to whether the extinctive prescription defense constitutes an abuse of rights.

C. Regarding ground of appeal No. 3

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the court below did not excess the amount of consolation money recognized by considering all the circumstances, such as mental suffering suffered by the victims and their bereaved families, discrimination and economic difficulties suffered by bereaved families, and delayed compensation for a prolonged period from the date of the violation to the date of closing argument in the court below, and thus, it cannot be deemed that the court below erred in the misapprehension of legal principles as to the calculation of consolation money.

3. Therefore, the part of the judgment below against plaintiffs 2, 3, and 4 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed. The costs of appeal against the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Kim So-young (Presiding Justice)