Whether Article 166(1) and Article 766(2) of the Civil Act applies to cases where a lawsuit seeking compensation for damages incurred due to a public official’s unlawful performance of duties is pending in the court until the time when the decision of unconstitutionality is made (affirmative), and whether Article 166(1) and 76(2) of the Civil Act or Article 96(2) of the National Finance Act applies to cases where “the statute of limitations based on the objective starting point of objective starting point of starting” is applicable to cases where Article 2(1)3 and 4 of the Framework Act on the Settlement of History for Truth and Reconciliation is in violation of the Constitution” (negative)

According to Article 8 of the State Compensation Act, Articles 166(1) and 766(1) and (2) of the Civil Act, Article 96(2) and Article 96(1) of the National Finance Act (Article 96(2) and (1) of the former Budget and Accounts Act), with respect to a claim for State compensation, the extinctive prescription of five years is applied from the date when the injured party or his legal representative becomes aware of such damages and the perpetrator (subjective starting point under Articles 166(1) and 766(1) of the Civil Act) is committed (subjective starting point under Articles 166(1) and 766(2) of the Civil Act).

On August 30, 2018, the Constitutional Court rendered a decision that Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act on the Settlement of History”) and Article 2(1)4 of the same Act apply to “the case of mass sacrifice of a private person” and “the case of severe infringement of human rights” under Article 166(1) and Article 766(2) of the Civil Act are unconstitutional.

The effect of the decision of unconstitutionality of the Constitutional Court is not only the case in which the Constitutional Court made a request for adjudication on the constitutionality of the same kind, or the case in which the request for adjudication on the constitutionality of the same kind is made to the court before the decision of unconstitutionality is made, but it does not extend to all general cases in which the law or the provision of the law is the premise of the decision of unconstitutionality and is pending before the court.

Therefore, the effect of the above decision of unconstitutionality extends to cases where a lawsuit claiming compensation for damages caused by a public official’s unlawful performance of his/her duties is pending in the court at the time of the decision of unconstitutionality in the case of “a group sacrifice case,” under Article 2(1)3 of the previous Bankruptcy Adjustment Act or “a serious violation of human rights or manipulation case,” under Article 2(1)4 of the same Act. As such, the right to claim compensation for damages does not apply to “the extinctive prescription based on the objective starting point” under Articles 166(1) and 766(2) of the Civil Act, and Article 96(2) of the National Finance Act (Article 96(2) of the former Budget and Accounts Act Article 96(2) of the National Finance Act (Article 96(2) of the former Budget

Article 8 of the State Compensation Act; Articles 166(1) and 766 of the Civil Act; Article 96(2) of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050, Oct. 4, 2006); Article 96(2) of the National Finance Act (see current Article 96(2) of the National Finance Act); Article 2(1)3 and 4 of the Framework Act on previous History Adjustment for Truth and Reconciliation

Supreme Court Decision 91Nu1462 Decided February 14, 1992 (Gong1992, 1065) Supreme Court Decision 96Nu1627 Decided April 26, 1996 (Gong1996Sang, 1767), Constitutional Court en banc Decision 2014Hun-Ba148, 162, 219, 219, 466, 2015Hun-Ba50, 440, 2014Hun-Ba223, 290, 2016Hun-Ba419 Decided August 30, 2018 (Hun-Ba263, 1394)

See Attached List of Plaintiffs (Attorney Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Seo Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na203545 decided April 20, 2018

All appeals are dismissed. All appeals filed by plaintiffs 11 and 11 are dismissed. The costs incurred in relation to the request for resumption of a lawsuit among costs of appeal are borne by plaintiffs 11 and the remainder is borne by the defendant.

The grounds of appeal are examined.

1. Determination of misapprehension of legal principles as to the division of inherited property, incomplete hearing, etc. (ground of appeal No. 1)

With respect to the right to claim damages that Plaintiffs 4, 2, 3, 5, 6, 8, 9, 10, and 7 acquired through an agreement on the division of inherited property with other co-inheritors, the lower court determined that the agreement on the division of inherited property becomes effective and, even if not, the agreement on the division of inherited property becomes effective, and rejected the Defendant’s assertion contrary thereto.

In light of the relevant legal principles, although the reasoning of the lower court is somewhat inappropriate, the lower court did not err by misapprehending the legal doctrine on the agreement on the division of inherited property, or by adversely affecting the conclusion of the lower judgment that the said Plaintiffs may exercise their right to claim damages from other co-inheritors on the premise that they legitimately acquired the right to claim damages.

2. Judgment on the ground of appeal No. 2)

The lower court acknowledged that Plaintiff 16 filed a petition for review of the judgment of civil reexamination (Seoul High Court 68Da23, Seoul High Court 1023) with Seoul High Court 2012Na1023, but accepted the said Plaintiff’s claim for damages while recognizing that the said Plaintiff was rendered a dismissal judgment on the ground that the said Plaintiff was not indicated as the assignee Nonparty 1, who was a distributionr Nonparty 1. The lower court determined that Plaintiff 16’s claim for damages was the cause of inheritance of the deceased Nonparty 1’s claim for damages, on the ground that the said Plaintiff’s claim for damages was the deceased Nonparty 1’s heir, and thus, it is difficult to deem

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding claims for damages arising from tort or by failing to exhaust all necessary deliberations, contrary to what is alleged in

3. As to the Defendant’s ground of appeal on whether the Defendant’s defense of extinctive prescription constitutes abuse of rights (ground of appeal No. 3)

A. Legal principles pertaining to the Constitutional Court’s decision of unconstitutionality

1) According to Article 8 of the State Compensation Act, Articles 166(1) and 766(1) and (2) of the Civil Act, Article 96(2) and Article 96(1) of the National Finance Act (Article 96(2) and (1) of the former Budget and Accounts Act), with respect to a claim for State compensation, the extinctive prescription is applied for three years from the date when the injured party or legal representative becomes aware of the damages and the perpetrator (the subjective starting point under Articles 166(1) and 766(1) of the Civil Act) or from the date when the injured party or his/her legal representative becomes aware of the damages and the perpetrator (the subjective starting point under Articles 166(1) and 766(2) of the Civil Act).

2) However, on August 30, 2018, the Constitutional Court rendered a decision that Article 2(1)3 of the Framework Act on the Settlement of History for the Truth and Reconciliation (hereinafter “The Act”) and Article 2(1)4 of the same Act applied to “the case of mass sacrifice by a private person” in Article 166(1) and Article 766(2) of the Civil Act and “the case of cruel human rights infringement and manipulation” in Article 2(1)4 of the same Act shall be unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, etc.; hereinafter “instant decision of unconstitutionality”).

3) The effect of the decision of unconstitutionality of the Constitutional Court is not only the case in which the Constitutional Court made a request for adjudication of unconstitutionality, but also the case in which the Constitutional Court made a request for adjudication of unconstitutionality or the court made a request for adjudication of unconstitutionality of the same kind before the decision of unconstitutionality is made, and the case in which the request for adjudication of unconstitutionality is not made, but also the case in which the relevant law or the provisions of the law are the premise of judgment and are pending before the court (see Supreme Court Decisions 91Nu1462 delivered on February 14, 1992; 96Nu1627 delivered on April 26, 1996, etc.).

4) Therefore, the effect of the decision of unconstitutionality of this case extends to the case where a lawsuit claiming compensation for damages incurred by a public official’s unlawful performance of duties is pending in the court at the time of the decision of unconstitutionality as to the “collective sacrifice case” under Article 2(1)3 of the previous Bankruptcy Adjustment Act or “serious human rights violation or manipulation case” under Article 2(1)4 of the same Act. As such, the statute of limitations on the right to claim damages does not apply to the right to claim damages based on the objective starting point of time under Articles 166(1) and 766(2) of the Civil Act (hereinafter “long-term extinctive prescription period”), and Article 96(2) of the National Finance Act (Article 96(2) of the previous Budget and Accounts Act) that provides five years for the period of extinctive prescription of the right to payment of money to the State.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

1) Although the distributors indicated in the attached Table 2 of the judgment below (hereinafter “the distributors of this case”) were lawfully distributed the farmland of this case from the head of Yeongdeungpo-gu under the Defendant’s control of the head of Yeongdeungpo-gu, the Defendant refused to receive repayment rice after May 1953, and created ○○ Corporation, etc. on the land of this case ○○-dong.

2) On February 8, 1967, the parties to the instant case filed a lawsuit against the Defendant seeking implementation of the procedure for registration of ownership transfer on the ground of completion of reimbursement on the condition that farmland was distributed in accordance with the former Farmland Reform Act and repaid rice was paid. On February 8, 1967, the said court accepted the claim of the distributors other than Nonparty 2, Nonparty 3, and Nonparty 4 (Seoul Civil District Court 65No5470), and the appellate court dismissed the Defendant’s appeal on December 8, 1967 (Seoul Civil Court 67Na646), and the Supreme Court dismissed the Defendant’s appeal on March 19, 1968 (Supreme Court 68Da1066) by dismissing the Defendant’s appeal (hereinafter “civil judgment”).

3) As the Defendant lost in the civil litigation related to the land of this case against the Defendant, the investigative agency conducted an investigation into the Defendant against the multiple distributors who filed a lawsuit against the Defendant and the public officials who testified in line with their arguments. The investigative agency detained the distributors for 4,5 days without a warrant of detention or re-detained them into the same crime. The investigative agency forced the distributors to withdraw the lawsuit and waive their rights or make certain witnesses make false testimony during the trial process due to violence and intimidation. Ultimately, 40 persons including the above multiple distributors and the public officials were indicted, and some of them were finally affirmed, and a judgment of conviction (hereinafter “judgment of causes for punishment”) became final and conclusive.

4) The Defendant filed a petition for a new trial on a civil final judgment against the Defendant based on a judgment of conviction, etc. The new trial court revoked a civil final judgment on December 6, 1989 and rendered a judgment dismissing the claim of the distributors of the instant case (Seoul High Court Decision 68No. 23, hereinafter “Private Property Judgment”). The above judgment became final and conclusive as it is.

5) On May 26, 2006, some of the Defendants and their bereaved family members, who were sentenced to the judgment regarding the instant crime of private cause related to the instant land at ○○ Dong-dong filed an application for the truth-finding and restoration of their reputation with the previous Settlement Commission for the truth-finding and reconciliation (hereinafter “Regulatory Commission”). The past Settlement Commission ordered a criminal case related to the instant land at ○○○dong-dong-dong as “the suspicion of ○○ Farmland Fraud” and ordered a criminal case related to the instant land as “the suspicion of ○○ Farmland Action Act” after one year’s investigation. On July 8, 2008, 2008, the State intervention in the civil litigation to achieve its administrative purpose, thereby unfairly abused the public power. Furthermore, it is difficult to hold a party responsible for fraud at the time of the instant civil litigation related to the instant land at the time, and it constitutes grounds for retrial under the Criminal Procedure Act.”

6) On February 4, 2009, 23 of the Defendants, among the Defendants, who were sentenced to the judgment of the instant crime in relation to the land of ○○ Dong, filed a petition for a new trial on the judgment of the Seoul Central District Court on the grounds of the decision of the past History Settlement Commission. On November 29, 2011, the Seoul Central District Court rendered a judgment not guilty of 21 persons, including the instant distributors (hereinafter “criminal new judgment”). The said new judgment became final and conclusive on December 7, 2011.

7) When the multiple distributors of this case or their bereaved family members were sentenced to a criminal review, they filed a petition for a new trial against the judgment of civil review. The new trial court revoked the part concerning the distributors of this case among the judgment of civil review and rendered a judgment dismissing the Defendant’s previous request for a new trial (Seoul High Court Decision 2012Na68 decided December 12, 2012, Seoul High Court Decision 2012Na177 decided April 26, 2013, Seoul High Court Decision 2012Na109 decided May 9, 2013, Seoul High Court Decision 2012Na341 decided June 19, 2013, Supreme Court Decision 2012Da341 decided April 11, 2013, Supreme Court Decision 2013Da853164 decided April 21, 2013, Supreme Court Decision 2013Da363164 decided March 16, 2014).

8) The Plaintiffs, Appellee, are the successors of Nonparty 5, Nonparty 2, Nonparty 6, Nonparty 1, and Nonparty 7 (hereinafter “Plaintiff-related multiple distributors”), among the instant multiple distributors, and the Seoul High Court Decision 2012Ja68 decided on April 11, 2013.

9) On May 22, 2013, the Plaintiffs filed the instant lawsuit against the Defendant for damages on the ground that, due to a series of illegal acts committed by the Defendant, multiple distributors related to the Plaintiffs were unable to acquire ownership of distributed farmland.

10) Plaintiffs 1, 2, 3, 4, 5, 6, 12, and 17, etc. modified the purport of claim and the cause of claim in order to extend the claim for damages on the grounds that they acquired rights corresponding to their shares from other successors of the parties related to the Plaintiffs through the agreement on the division of inherited property or the acquisition of claims among the lawsuit of this case.

C. Examining these facts in light of the aforementioned legal principles, the Plaintiffs’ claim for damages constitutes the State’s compensation claim for property damage caused by a public official’s unlawful performance of duties in cases of suspicion of serious human rights violations and manipulations under Article 2(1)4 of the previous Act. According to the effect of the decision of unconstitutionality of the instant case, the long-term extinctive prescription under Articles 166(1) and 766(2) of the Civil Act regarding the Plaintiffs’ claim for damages pursuant to the validity of the decision of unconstitutionality does not apply.

The court below acknowledged that the defendant's defense that the plaintiff's claim for damages was completed after five years from the starting point of the extinctive prescription under Article 766 (2) of the Civil Act (at the latest, January 1, 1999), since the plaintiff's claim for damages was filed after the lapse of five years from the starting point of reckoning the period of extinctive prescription under Article 766 (2) of the Civil Act (at the latest, January 1, 1999), the damage of the plaintiff was realistic as of December 31, 1998, and the plaintiffs' claim for damages was filed on May 22, 2013, which was five years after the lawsuit of this case was filed. However, since the plaintiffs filed the lawsuit of this case within a reasonable period from the occurrence of disability, the defendant's defense of extinctive prescription cannot be allowed as an abuse of rights against the principle

In so determining, the lower court erred by applying the provision that no longer effective according to the Constitutional Court’s decision of unconstitutionality with respect to the claim for damages by the Plaintiffs. However, as seen earlier, the long-term extinctive prescription does not apply to the claim for damages by the Plaintiffs according to the decision of unconstitutionality of this case. Therefore, the lower court

Therefore, the lower court did not err by misapprehending the legal doctrine on extinctive prescription or by failing to exhaust necessary deliberations, contrary to what is alleged in the grounds of appeal.

4. As to the plaintiff 11's request for taking over the lawsuit

On October 16, 2018, Plaintiff 11 filed an application to resume a lawsuit with the Supreme Court on November 15, 2018 on the ground that Plaintiff 11 died on October 16, 2018.

However, according to the record, it can be known that Plaintiff 11 died after the Defendant filed a statement of grounds for appeal, and as long as the legal proceedings of the court of final appeal entered the same stage, the inheritor need not take over the lawsuit (see, e.g., Supreme Court Decisions 2014Da21049, Apr. 29, 2016; 2015Da56116, Jul. 27, 2016).

5. Conclusion

Therefore, all appeals are dismissed, and all of the appeals are dismissed, and the costs incurred in relation to the request for taking over a lawsuit among the costs of appeal are borne by the requester and the remainder is borne by the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Jo Hee-de (Presiding Justice)