[1] The meaning of "the date when the offender becomes aware of the damage and the perpetrator," which is the starting point for the short-term extinctive prescription of claim for damages due to tort

[2] The case holding that whether an emergency arrest is lawful is mainly related to whether the requirements of emergency arrest are met, and there is room to view that there is no additional evaluation at the time of tort in light of the general public's standard, and in fact, in a case where the legality of emergency arrest is disputed in a related criminal trial, it can be deemed that the related criminal judgment was actually and specifically recognized only when the related criminal judgment becomes final and

[1] The "date when the injured party becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Code, which is the starting point of the short-term extinctive prescription of a claim for damages due to a tort, means the time when the injured party actually and specifically recognized the facts of the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the proximate causal relation between the harmful act and the occurrence of the damage. Whether the injured party is deemed to have actually and specifically recognized the facts of the tort should be reasonably recognized in consideration of various objective circumstances in each individual case and circumstances in which the claim for

[2] The case holding that whether an emergency arrest is lawful is mainly related to whether the requirements of emergency arrest are met, and there is room to view that there is no additional evaluation at the time of tort based on the general person, and in fact, in the case where the legality of emergency arrest is disputed in the related criminal trial, it can be deemed that the related criminal judgment was actually and specifically recognized only when the related criminal judgment becomes final and conclusive.

[1] Article 766(1) of the Civil Act / [2] Article 766(1) of the Civil Act, Article 200-3 of the Criminal Procedure Act

[1] Supreme Court Decision 97Meu18 delivered on July 24, 1998 (Gong1998Ha, 2234 delivered on September 3, 199) Supreme Court Decision 98Da30735 delivered on September 3, 199

[Judgment of the court below]

Korea

Seoul High Court Decision 2005Na65779 Delivered on April 18, 2006

The part of the judgment below on the claim for damages due to illegal arrest is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff is dismissed.

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

1. As to the assertion against the rules of evidence

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment after compiling the adopted evidence, and rejected all the plaintiff's assertion that the prosecutor and the chief prosecutor of the prosecutor's office who are public officials belonging to the defendant suffered mental harm due to the plaintiff's confession, coercion, coercion of evidence, manipulation of evidence, and illegal indictment. In light of the records, the court below's fact-finding and decision are justified, and there is no violation of the rules of evidence as argued in the Grounds for Appeal.

2. As to the assertion of starting the short-term extinctive prescription

Article 766(1) of the Civil Act, which is the starting date of the short-term extinctive prescription of a claim for damages due to a tort, means the time when the victim, etc., actually and specifically, has recognized the facts of the requirements for the tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the occurrence of the harmful act and the damage. Whether the victim, etc., is deemed to have actually and specifically recognized the facts of the requirements for the tort should be reasonably acknowledged in consideration of various objective circumstances in each individual case and circumstances practically possible (see, e.g., Supreme Court Decisions 97Meu18, Jul. 24, 1998; 98Da30735, Sept. 3, 199).

The court below cited the judgment of the court of first instance, which held that the emergency arrest against the plaintiff did not meet the requirements of Article 200-3 (1) of the Criminal Procedure Act and the judgment of the investigation prosecutor, etc. executed by the plaintiff was considerably unreasonable and thus, the defendant is liable to compensate for damages caused by such unlawful act as an official duty, such as an investigation prosecutor, etc., who is a public official belonging to the court, barring special circumstances. Even if the emergency arrest and detention against the plaintiff is illegal, the illegal condition was terminated on December 11, 199, when the execution of the warrant of detention was issued, and the plaintiff was aware of the investigation prosecutor and prosecutor's office, who is a public official belonging to the defendant, who is the perpetrator, at that time, and the court of first instance also decided that the emergency arrest was illegal while the plaintiff argued the illegality of the emergency arrest in the related criminal trial and decided that the emergency arrest was illegal. Thus, at least, the court of first instance recognized that the emergency arrest and detention was actually illegal at least when the court of first instance sentenced the above judgment and claimed damages against the defendant.

However, examining the relevant evidence in light of the records, there is room to view that the legality of the emergency arrest against the plaintiff is mainly related to whether the requirements of the emergency arrest are met, and in light of the general public’s standard, it is difficult to view that there is additional uncertainty of legal assessment at the time of tort. However, in fact, in the relevant criminal trial by the plaintiff, the prosecutor asserted that the emergency arrest against the plaintiff was lawful, and even though the court of first instance judged that the emergency arrest against the plaintiff was an illegal detention conducted without an arrest warrant while the emergency arrest against the plaintiff did not meet the requirements of the emergency arrest, the prosecutor still argued the legality of the emergency arrest while filing an appeal and appeal, and the legality of the emergency arrest against the plaintiff is still asserted. The issue of whether the emergency arrest against the plaintiff is legitimate or not at the appellate court and the court of final appeal are the main issue.

Thus, the plaintiff, who is dissatisfied with the illegality of the emergency arrest under the above special circumstances, can be deemed to have actually and specifically recognized the damage, etc. only when the related criminal judgment becomes final and conclusive.

Nevertheless, the court below concluded that the Plaintiff actually and specifically recognized the occurrence of damage at the time of rendering the judgment of the court of first instance. Thus, the court below erred by misapprehending the legal principles as to the starting point of short-term extinctive prescription, which affected the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out is with merit

Supreme Court Decision 200Da22249 Decided June 28, 2002 is inappropriate to be invoked in this case, since the case differs from this case.

3. Therefore, the part of the judgment below regarding the claim for damages caused by illegal arrest is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)