2013Da205174 Liability for Damages

person

It is as shown in the attached list of plaintiffs.

Korea

Seoul High Court Decision 2012457554 Decided April 25, 2013

January 29, 2015:

All appeals are dismissed.

Costs of appeal shall be borne by each party.

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

1. As to the Defendant’s ground of appeal

A. As to the grounds of appeal on the establishment of tort, a public prosecution was instituted based on evidence, etc. collected by a State agency through an illegal act, etc. during the investigation process and a final judgment of conviction was rendered, but in the retrial procedure, where the judgment of innocence became final and conclusive on the ground that the “Defendant case” under the latter part of Article 325 of the Criminal Procedure Act falls under “when there is no proof of facts constituting a crime,” the State may be held liable for damages, such as reinstatement by conviction (see Supreme Court Decision 2013Da20184

The court below accepted the judgment of the court of first instance, based on its stated reasoning, determined that the defendant was responsible for compensating the victims and their families of this case for mental damage caused by such tort, on the grounds that the defendant committed an unlawful arrest and detention of the victim AB, the plaintiff H, the network AF, the network AH, and the network AK (hereinafter referred to as "savers of this case") by violating the State's duty to protect the fundamental human rights of the people, and committed an unlawful act, such as long-term confinement of the victims of this case. In light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, there is no error of law by misunderstanding the legal principles

B. As to the ground of appeal on extinctive prescription

1) In a case where a State agency received a public prosecution based on the evidence collected by an illegal act in the course of investigation and received a final judgment of conviction, but the existence of grounds for retrial became final and conclusive after the judgment of innocence became final and conclusive in the retrial procedure, and claims damages against the State based on the illegal act of the State, the obligee cannot expect the claim for damages until the judgment of innocence becomes final and conclusive in the retrial procedure. In such a case, the defense of the completion of extinctive prescription by the State, which is the obligor, cannot be allowed as an abuse of rights against the principle of good faith. However, barring special circumstances, barring any special circumstance, the obligee may prevent the State’s defense of extinctive prescription, only within six months from the date when the judgment of innocence to dismiss such obstacle became final and conclusive, which is equivalent to the suspension of prescription under the Civil Act. In such a case, the determination should be based on whether the State filed a lawsuit seeking damages in principle (see, e.g., Supreme Court Decision 201

2) According to the reasoning of the first instance judgment as cited by the lower court and the record, the victims of this case were all indicted for violating Article 6 of the Special Act on 1961 and finalized by being convicted of each of the charges by the Revolution Court established pursuant to the "Act on the Establishment of the Tribunal of Revolution and the Office of Assistant Assistance to the Public Prosecutor's Office". The bereaved families of the victims of this case or the victims of this case filed a request for a retrial on each of the above conviction judgment, and each of the judgment of retrial was finalized, which declared innocence on September 30, 201 through December 15, 2011, and the plaintiffs filed a lawsuit of this case seeking damages against the Defendant on February 15, 2012 where six months have not passed since the Plaintiffs were to elapse.

3) Examining these facts in light of the legal principles as seen earlier, until the judgment of innocence on each of the victims of this case becomes final and conclusive, there was an objective disability that the Plaintiffs could not expect to exercise the right to claim damages of this case against the Defendant, and the Plaintiffs filed the instant lawsuit within six months from the time the judgment of innocence was final and conclusive, and thus, the Plaintiffs exercised their right within a reasonable period that could prevent the Defendant from exercising the Defendant’s defense of extinctive prescription

Although some of the reasoning of the judgment below on this part is insufficient, the court below's rejection of the defendant's defense of extinctive prescription constitutes an abuse of rights against the principle of good faith is justified, and there is no violation of law such as misunderstanding of legal principles as to the abuse of rights of the defense of extinctive prescription or failing to exhaust all necessary deliberations, contrary to

1) In principle, liability for damages arising from a tort is established at the same time, even without a separate notice of performance. However, in cases where the circumstances, such as the national income equivalent to or monetary value, etc., at the time of the conclusion of arguments, based on which the assessment of consolation money is based, are significantly changed compared to the time of the tort, and where it is inevitable to increase the amount of consolation money, it shall be deemed that damages for delay of the compensation obligation due to the tort occur from the date of the conclusion of arguments at the trial court, which is the basis for calculating consolation money (see, e.g., Supreme Court Decision 2011Da38325, Mar. 29, 2012).

2) According to the reasoning of the first instance court and the records, the court of first instance determined consolation money as of the date of the date of the closing of argument in the first instance, and calculated the amount of damages for each of the plaintiffs based on the share of inheritance, and recognized damages for delay from the date of the closing of argument in the first instance. The judgment below maintained the amount of consolation money determined by the judgment in the first instance court, and deducted the amount of compensation money received by the bereaved family members of the deceased AB (Plaintiff A, B, C, D, E, F, G) from the amount of damages for the above plaintiffs' compensation recognized in the first instance judgment after the closing of argument in the first instance court, and deducted the amount of consolation money received by the deceased AB's bereaved family members (Plaintiff A, C, D, E, F, G) from May 30 (date of the closing of argument in the first instance court) to April 25, 2013 (date of the closing of argument in the first instance court), and the next day to the day of complete payment, and dismissed each of the above plaintiffs's appeal and the remainder of appeal.

3) Examining the above facts in light of the legal principles as seen earlier, as long as the court below did not calculate the consolation money anew as of the date of closing of argument in the court of first instance and maintained the amount of consolation money in the court of first instance, the delay damages of the compensation obligation shall occur from the date of closing of argument in the court

Therefore, the judgment of the court below which recognized damages for delay from the date of closing argument in the first instance is just, and there is no error of law by misunderstanding the legal principles as to the calculation

2. Regarding the plaintiffs' grounds of appeal

A. Where calculating consolation money due to a tort as to the grounds of appeal on consolation money, the circumstances of the victim, such as the victim’s age, occupation, social status, property and living conditions, degree of suffering from the damage, degree of negligence of the victim, etc., as well as the circumstances on the part of the perpetrator, such as the perpetrator’s intentional intent and negligence, motive and cause of the harmful act, and the attitude of the perpetrator after the tort, are consistent with the principle of fair compensation for damage. The court may determine consolation money at its own discretion by taking into account such various circumstances (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 199; 2007Da7149, Dec. 24, 2009; 207Da7149, etc.). Meanwhile, in exceptional cases where compensation compensation damages due to the tort should be calculated from the date of closing argument at fact-finding court, it is necessary to determine consolation money for 120 years and family members of the victim’s act.

In light of the above legal principles, the reasoning of the judgment below, and the records, the amount of consolation money of this case recognized by the court below cannot be deemed to have been excessive to the extent that it deviates from the limits of discretion of the fact-finding court, and the calculation of consolation money of the court below is not erroneous in the misapprehension

B. The lower court rejected the Plaintiff L, M, N,O, and BB’s assertion that the Defendant was liable to compensate for damages equivalent to the lost income of the deceased AF on the ground that the deceased AF was found to have been subject to a judgment for a violation of the Special Act in this case. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok