2014Da89201 Compensation (as referred to)

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Korea

Gwangju High Court ( Jeonju) Decision 2013Na1315 Decided November 27, 2014

April 23, 2015

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

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

1. In a case where a public prosecution was instituted based on evidence, etc. collected by a State agency due to an illegal act, etc. during the investigation process, and a conviction became final and conclusive, but the existence of grounds for retrial is revealed later and 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

Therefore, it is not permissible for the State, which is the debtor, to assert the completion of the extinctive prescription as an abuse of rights. However, in such a case, barring any special circumstance, the creditor shall exercise his/her right within a period of six months equivalent to the suspension of prescription under the Civil Act from the date when the judgment of innocence was rendered after the dismissal of such disability became final and conclusive, barring any special circumstance, and as a matter of principle, whether there was an exercise of the right within such period is determined on the basis of the date when a lawsuit was filed for damages. However, even if the creditor did not file a lawsuit for damages within such period, there are special circumstances to extend the "reasonable period for exercising the right to prevent the defense of the extinctive prescription" when the creditor filed a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act. However, it can be deemed that he/she exercised the right within a reasonable period of six months from the date when the decision on the criminal report became final and conclusive (see, e.g., Supreme Court Decision

In addition, "where the defendant's refusal to perform an obligation is remarkably unfair or unfair because the exercise of the right to defense following the statute of limitations constitutes an abuse of rights, and there are special circumstances, such as where the refusal to perform an obligation is remarkably unfair or unfair due to such circumstances as other creditors receive the repayment of obligation under the same conditions," "where the defendant's objection to the completion of the statute of limitations is against the principle of trust and good faith" means cases where the debtor voluntarily pays to other creditors for whom the statute of limitations has been completed and only the relevant creditors refuse to perform the obligation on the ground of the completion of the statute of limitations, and where the completion of the statute of limitations is recognized as being considerably unfair or unfair (Supreme Court Decision 2013Da2

5. Supreme Court en banc Decision 2012Da202819 Decided 16.

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following circumstances.

A. A. Around January 1, 1969, F was committed to the subsidiary police station in the process of investigating the suspicion of the violation of the National Security Act against G et al., who is the husband, and was investigated as a suspicion of the violation of the National Security Act and the violation of the public law on January 14, 1969, and prosecuted against the violation of the National Security Act, etc.

B. On June 19, 1969 and June 19, 1969, the Jeonju District Court rendered a sentence of imprisonment with prison labor for one year and suspension of qualifications for all the facts charged against F. On November 4, 1969, the appeal of F was dismissed by the Gwangju High Court, and the said judgment became final and conclusive around that time.

C. On June 3, 2008, the Korean History Settlement Commission rendered a truth-finding decision to the effect that it is highly probable that F was investigated in a state where F was illegally detained and that F was subject to harsh acts from investigators in the process, and that the State needs to take corresponding measures, such as re-adjudication, to recover the damage and reputation of F and related persons upon the receipt of conviction due to illegal manipulation.

D. The F died on May 10, 2007. Plaintiff A, F’s father’s father, filed a request for a new trial on the said final judgment under the former District Court’s Seoul District Court’s 2008 Inventory1, and the said court rendered a judgment of innocence on February 4, 2009, on which the said judgment of innocence became final and conclusive on February 12, 2009.

E. After doing so, the Plaintiffs, the heir of F, filed a criminal compensation claim with the above court 2009co2, thereby09.

3. On February 2011 following the receipt of each of 11,904,00 won as criminal compensation with a decision on criminal compensation on 26.

28. The instant lawsuit was filed.

3. Examining the above facts in light of the legal principles as seen earlier, it can be said that there was an objective de facto disability that could not expect the Plaintiffs to exercise the right to claim damages until February 12, 2009, by the judgment of innocence against F. However, the judgment of innocence against the Plaintiffs was affirmed.

Unless there exist special circumstances, barring special circumstances, the Defendant’s defense of extinctive prescription cannot be deemed to have been exercised within a reasonable period that could prevent the Defendant from exercising his/her rights, even though the Defendant filed a claim for criminal compensation and received a decision on criminal compensation on March 26, 2009, which would have passed six months since the date on which the decision became final and conclusive.

In addition, even after examining the record, insofar as the defendant, who is the debtor, has not been able to find any special circumstances to the same extent as refusing the performance of an obligation on the ground of the completion of the extinctive prescription, inasmuch as the defendant's arbitrary repayment to other creditors whose prescription has been completed, it is highly necessary to protect the creditor, and there are special circumstances where the refusal of performance is remarkably unfair or unfair due to such reasons as other creditors receive the performance of an obligation on the same condition, it is difficult to conclude that the defendant's defense of the extinctive prescription constitutes abuse of rights.

4. Nevertheless, on February 12, 2009, the lower court rejected the Defendant’s defense of extinctive prescription on the ground that the Defendant’s defense of extinctive prescription was not sufficient to regard it as an abuse of rights, solely on the grounds of the circumstances as indicated in its reasoning, such as that there was an objective disability for which the Plaintiffs could not exercise their right to claim damages until February 12, 2009, or that the illegality of the investigators belonging to the Defendant gave rise to significant and significant pain.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the abuse of rights in the defense of extinctive prescription, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below 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 So-young

Justices Lee In-bok

Justices Kim Yong-deok

Justices Go Young-young