[1] In a case where the right to claim damages under Article 2 (1) of the State Compensation Act is not exercised for five years, whether the statute of limitations is terminated pursuant to Article 96 of the National Finance Act (affirmative) and the starting point of counting the statute of limitations period

[2] The starting date of extinctive prescription of a claim for State compensation due to illegal arrest and detention (=the date when the illegal state terminates by issuing and executing a warrant of detention)

[1] Articles 2(1) and 8 of the State Compensation Act, Article 96 of the National Finance Act / [2] Articles 2(1) and 8 of the State Compensation Act, Article 96 of the National Finance Act

[1] Supreme Court Decision 94Da23692 delivered on February 11, 1997 (Gong1997Sang, 720) Supreme Court Decision 2004Da33469 delivered on May 29, 2008 (Gong2008Ha, 1109)

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Gu Chungcheongnam-gu et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 2006Da30440 Decided April 24, 2008

Seoul High Court Decision 2008Na43459 decided July 24, 2008

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

The grounds of appeal are examined.

In this case where the plaintiff seeks damages from illegal arrest and detention against the defendant Republic of Korea, the court below rejected the defendant's defense on the ground that the defendant's defense against the extinctive prescription period under Article 96 of the National Finance Act was filed on February 1, 2005, on the ground that the plaintiff's defense against the defendant's defense against the extinctive prescription period under Article 96 of the National Finance Act was filed within five years after the judgment of innocence became final and conclusive in light of the circumstances as stated in its reasoning, since the plaintiff can be deemed to have actually and specifically recognized the damage from illegal arrest and detention only after the judgment of innocence became final and conclusive on June 11, 2002.

However, it is difficult to accept such judgment of the court below for the following reasons.

The right to claim damages against the State under the former part of Article 2(1) of the State Compensation Act is extinguished by prescription if it is not exercised for the five-year period from the end of the tort (see, e.g., Supreme Court Decisions 94Da23692, Feb. 11, 1997; 2004Da33469, May 29, 2008). In this case, the statute of limitations runs from "when it is deemed that the victim has actually caused damage," regardless of whether the victim knew or could have anticipated the result of the damage (see, e.g., Supreme Court Decision 2004Da71881, May 13, 2005). In light of the records, the statute of limitations shall run from the date of expiration of the warrant of detention to the date of termination of the unlawful arrest and detention.

Nevertheless, the judgment of the court below which rejected the defendant's defense against the statute of limitations is erroneous in the misunderstanding of legal principles as to the starting point of the statute of limitations under the National Finance Act, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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 Nung-hwan (Presiding Justice)