2014Na2028266 Damages

A

Korea

Seoul Central District Court Decision 2013Na527527 Decided July 15, 2014

March 6, 2015

May 1, 2015

1. The part of the judgment of the court of first instance against the plaintiff ordering payment is revoked.

The defendant shall pay to the plaintiff 48,88,88 won and interest thereon 5% per annum from March 6, 2015 to May 1, 2015, and 20% per annum from the next day to the day of full payment. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 119,44,44 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged in full view of Gap evidence Nos. 1 and 4 and the purport of all pleadings:

A. At around 14:00 on September 1, 1950 during the Korean War, the Hague set up a position belonging to the U.S. Pacific War (D 727DHven) that provided support for the booming of coastal franchising and booming of ground forces at the sea before the port of the port of the Republic of Korea, for ten minutes, 15 out of 10 minutes of sand (hereinafter referred to as the “emulsion of this case”). As a result, the refugees who were the above sand president at the time were killed in a group (hereinafter referred to as the “emulgion case”).

B. The Plaintiff is a member of the network D’s child, and is punished by the network E.

2. Occurrence of liability for damages;

A. Whether the network D and the network E were killed in the case of the Port Port Port Port E

1) In full view of the purpose and contents of the Framework Act on the Settlement of History for the Truth and Reconciliation (hereinafter “The Act on the Settlement of History”) in the past, the method of the activities of the committee for the settlement of truth rooms and reconciliation established thereby, and the contents of the investigation report, etc., the investigation report by the committee for the settlement of history in the past cannot constitute a flexible evidence even in civil proceedings claiming damages against the State, unless there are special circumstances. However, the contents of the investigation report or the disposition of the committee for the settlement of history in the investigation report do not have the same effect as the presumption of fact legally, or have no probative value that does not allow any counter-written evidence, such as individually examining the relevant parts, it should go through the procedure to confirm the facts that individual parties are victims of the relevant case. Furthermore, if it appears that the contents of the decision regarding the individual subject matter of investigation report are inconsistent with the standards of determination made by themselves, or that the contents of the investigation report, which was based on the confirmation of victims or the recognition of presumption, are considerably inconsistent with the facts or the contents of the investigation report, 20.

2) The following facts can be acknowledged in full view of the statements in Gap evidence Nos. 1, 3, 4, and 6 and the purport of the entire pleadings.

① On June 22, 2010, the Korean War Reorganization Commission investigated the cases of the United States War War War, and made a decision to confirm the network D and the network E (hereinafter referred to as “the network”) as a victim of the instant case.

② G stated that “The Plaintiff’s father and the birth of the Plaintiff was changed from the Yeong River,” and that “A’s investigator’s questioning was not directly considered, but was aware of the fact from the Defendant directly. No direct seeing this fact was sulphy, but the Plaintiff was aware of the fact that the Plaintiff’s father and the birth was the victim, such as the time when the Y’s testimony or proposal date was the same.” He stated that “The Plaintiff’s father and the birth was the victim of this case.”

③ 원고는 1940. 11. 19. 생으로 이 사건 당시 이 사건 피격 현장에 있었는데, 폭격 전후 상황을 말하라는 과거사정리위원회 조사관의 질문에 "계곡 중간에 약간 푹 들어간 지점에 아버지가 동생 E를 안고 돌들에 웅크리고 있었는데 파편이 날아와 동생의 배를 치고 아버지의 왼쪽 갈비뼈를 치고 나갔습니다. 아버지는 동맥이 터졌는지 피를 많이 흘리고 말할 힘도 없으신 중에 동생을 돌보라고 겨우 말하시고 바로 운명하였고, 동생은 배가 갈라졌는데 말도 못하는데 목이 마른지 자꾸 물을 달라고 했다. 집으로 옮겨서 응급조치로 솥의 속 검정을 긁어서 흰 실에 묻히고 바늘로 찢어진 부위를 어머니가 꿰맸는데 동생은 따갑고 아프다고 아우성이고, 우리는 피비린내 때문에 얼굴을 돌리고 있는데, 그래도 어머니가 빠져나온 창자를 어떻게 배에 다시 넣고 몇 군데라도 꿰매고 옷가지로 꽁꽁 묶어 매어 두었는데, 며칠을 물을 달라고 하여 수건에 조금씩 주다가 3일째는 어머니도 포기하시고 물이라도 실컷 먹으라며 물을 주니 물을 먹고 나더니 조금 있으니 바로 죽었습니다."라고 진술하고, "희생자의 시신을 수습한 사실이 있느냐"는 조사관의 질문에 "아버지는 해변에 돌아가셔서 바로 그 자리에서 이웃집 아저씨가 땅을 파서 겨우 시신을 가릴 정도로 파서 묻고 급히 동생을 안고 집으로 피했던 것입니다. (중략) 집으로 와서 I의 아버지와 J씨를 불러와서 시신을 수습해서 지금 여남곶 등대 바로 밑에 매장했습니다. 동생은 오후 6시에 운명했는데 어머니가 산 밑말뚝에 묻었는데, 개와 짐승이 시신을 훼손해서 어머니가 다시 시신을 수습해서 우리 집 뒤쪽 산위 밭 있는 계곡에 다시 묻었습니다."라고 진술하였다.

④ On July 18, 1954, a copy of the network D’s removal is written on the date and time of the death, and on the part of the network E’s removal, etc., the date and time of the death was written on February 15, 1964. The Plaintiff stated, “In the family register, how the date and time of the death of the victims are stated” as “The Plaintiff asked questions of the past History Settlement Commission’s investigator, “The time and time of the death of the victims are stated differently from the facts, because there is no war and military discipline at the time, and thus, it is stated that H is consistent with the facts.”

3) We examine the above facts in light of the legal principles as seen earlier.

G does not directly regard the deceased’s death. However, the deceased’s person residing in the same village as at the time of the deceased’s death is accurate in terms of the facts that he/she or he/she could not have heard. As such, it is difficult to deny the credibility of his/her statement solely on the ground that he/she was a professional statement. Furthermore, the Plaintiff also made a concrete and detailed statement to the extent that he/she could not explain the situation on the day of the instant case without direct experience, and verified that he/she was a witness or a third party. As such, the credibility of each statement is recognized. In addition, it is deemed that there is any inconsistency in the part of judgment on the deceased in the investigation report by the former Regulatory Commission, or that the former Regulatory Commission violated the criteria for the determination on the premise of the victim’s confirmation or presumption, or that the content of the statement by the bereaved family or witness, which was based on the recognition of the victim’s confirmation or presumption, is inconsistent with the fact confirmation of the investigation report, or that it is difficult to affirm any circumstances in view of logical and empirical rules.

Therefore, it is reasonable to view that the network D died on September 1, 1950, which was on the date of the instant shooting, and that the network E died on September 4, 1950, which was 3 days after the shooting.

B. Defendant’s liability

1) According to the above evidence, the following facts are acknowledged.

① The armed forces and United Nations forces formed a “scopic defense vessel” from around August 1950 to around September 19, 1950 in order to observe Busan. The armed forces, who was in charge of the north-east side of the Nakdong River defense vessel, assigned five associations (Nos. 1, 6, 8, 3, and water associations) to the east from dwars, and three associations were assigned to the south from dwars in charge of the southwest of the defensive vessel.

② Posi Port Mon, which had been in August 1950 and around September 195, fell Daegu and sought to seize Busan Bridge, was a part of the operation of the People’s Forces. On the day of the instant shooting ( September 1, 1950), there was a tent (93 notice) between the five groups of the People’s Republic of Korea and the three group of the Armed Forces and the three group of the Armed Forces, and there was a GongMasan, which was 16 times or more. The Masan was located at the 3-3.5m northwest from the pelleside on which the instant shooting occurred.

③ The United Nations Navy led the United Nations Navy to the Navy was carrying out adjacent support operations to the ground group through brings and brings in addition to basic operations that block all activities on the sea in the North Korean armed forces.

The typical system for the naval support of the Navy on the ground is as follows: Heartist officers located in the naval forces support vessel, etc. of the Navy shall maintain contact with the Habbs liaison officer (NGLO) located in the Army at all levels and with the officer responsible for the naval observation on the ground, and shall control the brine. From among the officers of the Army in the Army located in the Army at all levels, he/she shall receive the request for the brine support and control the shooting. The brine shooting range (NFO) appointed from among the officers of the Army in the Army located in the Army at all levels shall perform the duties of planning and requesting the brine support of the naval forces of the Navy with the assistance of the officers responsible for the brine shooting liaison officer who are the officers of the Navy, or the coastal shooting control officer (SFCP) who are the officers of the Navy.

However, the Haba support system around the port was operated in a way different from the aforementioned typical programming. On August 26, 1950 to September 24, 1950, the important mission of the 96.5 Maba-5 unit, which belongs to the Haba-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-S-E-E-E-E-E-E-S-E-E-E-S-E-E-E-S-E-E-E-S-E-E-E-S-E-E-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-E-S-S-E-S-E-S-E-S-S-S-S-S-E-E-S-E-S-S-E-S-S-S.

④ From August 20, 1950, more than 10 days ago, from around 20, 100 to around 1950, the refugees, composed of 1,000 residents in Hah Dong-dong and South-dong, and residents in the North Korean territory in the neighboring port, were gathered in the back of the backshore. At the time, approximately 1,00 refugees were mainly her children, older persons, and women. At the time, the backshore had a wall with a sand saw of 20 meters wide, with a slope of 80 degrees long, and was exposed to the sea. During the back of the backside of the backshore, the refugees was anchored at the front sea, while coming into the back of the back of the backshore, and the front sea was frequently anchored with the back of the back of the year, and the back of the year immediately before the back of the year of the 1950-round 1, 1950.

⑤ From September 1, 1950 to September 6:27, 1950, the Hague set up a 196.5 Gabbling team, which was in charge of the role of the Gabing force support box, performed shooting upon the request of the three teams of the Armed Forces of the Republic of Korea at the request of the three teams of the Republic of Korea.

At around 14:00 on the same day, the Hague was ordered to capture from the coast shooting control group of three teams of the National Armed Forces (or any solidarity belonging to the third team). Habdog support group of the Hague confirmed the bring points at which refugees were gathered. The brings at the bring point at which the bring points were gathered. The 3th bring group of the grings at the gring was notified as the refugees, and requested re-verification of the grings at the 3th gring group of the National Armed Forces. However, the 3th grings at the 3th gring group of the National Armed Forces, which constituted all the coast shooting lines of the 3th gring group, was not erroneous, and the 15th grings at the 8th gring of the 20th grings at the 15th grings at the 15th grings at the 8th gring.

6) In the investigation report of the past History Settlement Commission, it was found that the brush of this case was found that the refugees who had been under the brupted were in the vicinity of the defense line of the Republic of Korea, and that the coast shooting control team, in which the movement was reported, was mixed with North Korean forces, according to the Army's information or operational guidelines.

2) Comprehensively taking account of the following circumstances revealed from the above facts acknowledged and the evidence revealed, it would be reasonable to view that the U.S.A. soldiers employed by the Defendant were mixed with North Korean forces among the refugees, and thus, it would have become a critical opportunity to request piracy. The Defendant, as a result of gross negligence, infringed upon the deceased’s fundamental rights, freedom of body, right to life, etc., which are the basic rights guaranteed by the Constitution, jointly with the U.S. military. In addition, it is obvious in light of the empirical rule that the deceased and the Plaintiff, who is their bereaved family members, suffered from extreme mental distress, and thus, the Defendant is liable for compensation for damages suffered by the deceased and the Plaintiff due to the unlawful performance of duties by public officials belonging to the military under Article 27 of the Constitution of the Republic of Korea (amended by Act No. 1960, Jul. 17, 1948; Act No. 150, Jun. 15, 194).

① At the time of the occurrence of the instant shooting, the three shooting teams were placed in the vicinity of the 93 Mapo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo

At that time, the FJ, who belongs to the U.S. military adviser, appears to have served as an important role in the coast shooting control group of the Korea Armed Forces. However, there is no evidence to deem that the above coast shooting control group, regardless of the will of the Korean armed forces, has decided the shooting of this case.

Although the coast shooting control team consists of both the Army and the Navy, it is reasonable to view that the attack of this case was conducted at the request of the Armed Forces, in view of the fact that the Army determined the attack of the Army and the Navy were supported by the Navy (see, e.g., the 126 pages of the Investigation Report by the Armed Forces), and that the coast shooting control team of the third group of the Armed Forces was ordered by the Army on the ground that the Army request was made by the Army.

② From 10 days before the capture of the instant case, the two refugees were gathered at an open place in the military base. On the sea, the three teams of the U.S. forces were anchored at all times, and the three teams of the U.S. armed forces were able to fully understand that most of the refugees who were gathered at the shooting site of the instant case were comprised of non-fighters and civilians. Furthermore, the Hague was able to identify the fact that it was 80 meters away from the mouth at the time of the capture of the instant case, and that it was well known that they were civilians, even if they were able to find out the fact that they were in the military base, and that there were no other methods of attacking and re-establishing refugee information on the date of their request, on the ground that there was a possibility that there was a large possibility that there was an attack among those who were in the military base at the time of the capture of the instant case, and that there was no other means of attacking and re-establishing refugee status information on the date of their request.

In addition, in light of the fact that the air space around the Song-gu Sea was not a superficial with the enemy at the time, and that the air space was examined by the air space of the respondent due to the low-air flight and then the air space was conducted, it seems that the armed forces or the United States forces could have sufficiently predicted that a considerable number of the refugees will sacrifice if the air space was conducted.

On the other hand, all ACC and VTpos emitted from the Hague equipped with each other explosion in the vicinity and spread in a wide range of large and small so as to have great effects on life-sustaining at the time of shooting. In light of this, even though people who are gathered on the ACC and the eths of the eths of the U.S. military forces are sufficiently identified as a civilian as a refugee, it seems that they immediately launch a shot for human life without taking measures such as sound only for the purpose of warning or launching blanks first, even though they are sufficiently aware that they are civilians.

In full view of such circumstances, it is reasonable to view that the armed forces and the United States Armed Forces have committed gross negligence in violation of the international humanitarian law and the fundamental purpose of the war law, which attempts to prohibit attack against civilians and minimize civilian damage, in the course of requesting and implementing the attack of this case.

③ In the investigation report by the previous War Reorganization Commission, it was not an incidental result caused by negligence in connection with the cases of Posting the U.S. military forces, but an intentional act committed against a refugee who occurred in combination with the upper order, and an act of murdering or unnecessary attacking against a person who is not related to a war in the method of war execution, and it is difficult to recognize specific and direct military interest, which is a requirement for military necessity.

C. Whether extinctive prescription of the right to claim damages expires

1) Defendant’s defense and the Plaintiff’s assertion on it

The defendant asserted that since the plaintiff's claim for damages was filed on June 21, 2013 after five years from September 1950 after the death of the deceased, the plaintiff's claim for damages was completed and expired. Accordingly, the plaintiff asserts that this defense is abuse of rights.

2) Determination

A) Claim for damages against a State arising from a tort is extinguished by prescription unless it is exercised for five (5) years from the date of the tort (Article 32 of the former Accounting Act before it was repealed by Act No. 42 of Apr. 7, 1921 and repealed by Act No. 217 of Sept. 24, 1951). It is evident that the instant lawsuit was filed on Sept. 1, 1950 by the Deceased’s death or on Sept. 4, 1950, and five (5) years after September 21, 2013.

B) However, since the exercise of the right of defense on the grounds of extinctive prescription is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, the obligor has shown the same attitude that the obligor would not invoke the statute of limitations after the completion of extinctive prescription, and if the obligor exercised his/her right within a reasonable period that could expect the exercise of the right, the obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2009Da66969, Sept. 8,

Unless there are any restrictions on the method of enforcement while the Defendant again ascertains historical facts prior to several hundred years through the enactment of the Act on the Settlement of History and declares to withdraw measures to recover damage to the victim and his/her bereaved family members, it shall be deemed that the victim et al. made a declaration that he/she would ultimately accept the method of judicial relief seeking compensation by the method of a claim for state compensation unless there are special circumstances. In addition, the derivative legal meaning includes the purport that he/she would not refuse compensation by asserting the new extinctive prescription in a specific litigation case.

However, even in cases where an obligor granted the same trust that he/she would not invoke the benefit of extinctive prescription, an obligee may block the obligor’s defense of extinctive prescription only if he/she exercised the right within a reasonable period from the time when such circumstance occurred. In such cases, the issue of whether there was an exercise of right within a reasonable period shall be comprehensively taken into account the relationship between the obligee and the obligor, the details, motive, and circumstances leading up to the obligor’s act given trust, the purpose and genuine intent of the obligor’s act that the obligor intended to achieve through such act, and whether there were special circumstances where the obligee had to delay the exercise of right. “reasonable period” should be limited to a short period corresponding to the suspension of prescription under the Civil Act, barring special circumstances, barring any special circumstance, in cases where it is inevitable to acknowledge an extension of the period due to an individual case, such period may not exceed three years, which is the short period of extinctive prescription under Article 766(1) of the Civil Act (see Supreme Court en banc Decision 2012Da20819 Decided May 16, 2013).

C) In light of the aforementioned legal principles, the Plaintiff filed the instant lawsuit on June 21, 2013, which was before the lapse of three years from June 22, 2010, which granted the Defendant trust that the Defendant would not invoke the benefit of extinctive prescription by making a truth-finding decision against the Deceased, and the following circumstances were revealed: (a) the Defendant declared that the Defendant would take appropriate measures to restore the victims and bereaved families’ damage and honor based on the truth discovered through the Act on the Settlement of History; (b) the Plaintiff would have expected that the Defendant would take appropriate measures to restore honor and compensate the victims and bereaved families by enacting a special law on the distribution of and compensation for the Korean case of sacrifice before and after the Korean War; and (c) the Plaintiff would have brought an action against the Defendant individually since the Defendant did not take any active measures so far, it would be reasonable to deem that the Plaintiff would have exercised the right to defense against abuse of rights within the reasonable period of time after the lapse of the period of time after the truth-finding decision.

Therefore, the defendant's defense of extinctive prescription is without merit.

3. Scope of damages.

(a) Amount of consolation money;

In full view of all the circumstances revealed in the records and arguments of this case, the deceased and their bereaved family members were suffering from the mental pain of this case, economic difficulties that were continued for a considerable period thereafter, the contents and degree of the tort of this case, equity with similar cases, and statistical income data for calculating the lost income at the time of the deceased's death cannot be calculated for the deceased. However, in the course of the war of this case, the consolation money for the deceased's death is not determined separately for the deceased's death since there were no statistical income data for calculating the lost income of the deceased, in particular, special circumstances where there was a rupture with the enemy in the neighboring area, and even if it was sufficiently known that the deceased was the civilian rather than the defendant, it appears that the deceased was more able to be able to be able to be able to take the lead in the military where the deceased suffered from the mental pain of this case, 40 million won for the deceased's spouse, 20 million won for their parents and children, 4 million won for the deceased's death (However, 200 million won for the deceased's death).

(b) inheritance relations,

1) The fact that the network D died on September 1, 1950, the fact that the network E died on September 4, 1950 was seen earlier, and the fact that the network E died on September 4, 1950, and the overall purport of the pleadings in the statement Nos. 2 and 6, as a whole, Australia at the time of the network D’s death, as the result of the network D’s death, the fact that Australia died on November 10, 1986, the fact that the network D’s wife and the mother of the network E died on November 10, 1986, the fact that the Plaintiff and the network E were the lineal descendants C, B, and L were married around 1963, and the fact that B married around 1963 is recognized as follows.

① Inheritance relation of deceased D’s consolation money: B on January 1, 1960, under the provisions of Article 11 of the Decree on Shipbuilding’s Death before the Civil Act was promulgated, it was customary at the time that the property should be equally inherited to the children who are lineal descendants located in the same family register (see Supreme Court en banc Decision 88Meu3619, Feb. 27, 199). Accordingly, the deceased’s death is the deceased family members, and thus, the deceased’s lineal descendants, C, B, and deceased shall inherit the deceased D’s consolation money as 1/4 shares. ② If a non-family member of deceased, who is not the head of Australia, his/her deceased, his/her deceased, his/her mother shall be entitled to consolation money of 1/4: 100 of the inheritance net at the time of his/her death (see Supreme Court Decision 90Da14094, Jan. 1, 196).

① 10,000,000 won in inheritance due to the death of the network D (i.e., consolation money of KRW 40,000 x 1/4) ② 32,88,888 in inheritance due to the death of L = [The consolation money of KRW 20 million for the death of the network + KRW 4 million for the death of the network E + KRW 4,000,000 for the inherited property of KRW 50,000 for the death of the network E + KRW 40,000 for the inherited property of KRW 10,000 for the death of the network)] X 4/9, and less than KRW 1/4 for the resolution.

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 48,88,888 [Inheritance 42,88,888 (10,000 won + KRW 32,88,8888), + unique consolation money of KRW 6,000,000 (the net D’s square agents + KRW 2,000,000 as the net E’s square agents +) and to pay damages for delay calculated annually from March 6, 2015, which is the date of closing argument in the trial (see Supreme Court Decision 2009Da103950, Jan. 13, 201) that the Defendant is deemed reasonable to dispute over the existence and scope of the obligation to perform, from May 1, 2015 to the date of the final judgment, to the date of complete payment, 5% per annum as stipulated in the Civil Act, and from the next day to the date of the next day, 20% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc.

4. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal shall be accepted, and it is so decided as per Disposition.

The judge of the presiding judge shall be Jin only

Judges Jeong Jae-ok

Judge Cho Jae-soo

1) The request for bareboat support is divided into the request for the plan and the request for emergency. The request for a typical plan is to the group of collective associations with a company with a company with a ground level.

It is requested as a chain of command, and is supported by the Navy in cooperation with the Ambassador of the Navy in the ground group. Emergency requests may not be planned in advance.

In the form of a request for omission and delay in the routture or plan request, and shall be made by the officer of the Habsing liaison or by the officer of the naval observation of the Navy.

of this section.