[1] In cases where the Constitutional Court rendered on August 30, 2018 (1), Article 166(1), Article 766(2) of the Civil Act that applies to Article 2(1)3 (a) and 4 (a) of the Framework Act on the Settlement of Historys for Truth and Reconciliation) of the Act on the Settlement of Truth and Reconciliation is unconstitutional, and where a claim is made for compensation of damages due to a public official’s unlawful performance of duties in cases falling under subparagraphs 3 and 4 of the above Article 166(1) and Article 766(2) of the Civil Act or Article 96(2) of the National Finance Act, whether the statute of limitations is applied to the claim for compensation of damages (negative)

[2] In a case where the former Bankruptcy Settlement Commission established a truth-finding on the case of a civilian’s sacrifice as defined in Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation, the “date when the victim and his/her bereaved family members become aware of the occurrence of damage and of the perpetrator,” which is the starting point of the short-term extinctive prescription under Article 766(1) of the Civil Act regarding the right

[1] Article 8 of the State Compensation Act, Articles 166(1) and 766 of the Civil Act, Article 32 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951 to Article 82 of the Financial Act), Article 2(1)3 and 4 of the Framework Act on the Settlement of History for Truth and Reconciliation / [2] Article 766(1) of the Civil Act, Articles 2(1)3, 26, and 28 of the Framework Act on the Settlement of History for Truth and Reconciliation

[1] Supreme Court Decision 91Nu1462 Decided February 14, 1992 (Gong1992, 1065), Supreme Court Decision 96Nu1627 Decided April 26, 1996 (Gong1996Sang, 1767), Supreme Court Decision 2018Da233686 Decided November 14, 2019 (Gong2020Sang, 166), Supreme Court Decision 2014Hun-Ba148, 162, 219, 219, 466, 2015Hun-Ba50, 2014Hun-Ba23, 290, 2016Hun-Ba263, 2016Hun-Ba419 Decided August 30, 2018 (Hun-Ba263, 1394) / [206Da36964, Feb. 26, 2006]

Plaintiff 1 and one other (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Korea

Daegu District Court Decision 2017Na317820 decided October 10, 2018

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. A. According to Article 8 of the State Compensation Act, Articles 166(1), 766(1) and (2) of the Civil Act, Article 96(2) and (1) of the National Finance Act [Article 32 of the former Accounting Act (amended by Act No. 42 of Apr. 7, 1921, and repealed by Act No. 217 of Sept. 24, 1951)], with respect to a claim for State compensation, the victim or his legal representative becomes aware of the damage and the perpetrator (the subjective starting point under Articles 166(1) and 766(1) of the Civil Act), three years from the date he or she became aware of the damage (the objective starting point under Articles 166(1) and 766(2) of the Civil Act) or the date he or she committed a tort (the extinctive prescription shall be applied in principle for five years from the date he or she became aware of the damage and the perpetrator).

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 that applies to “the case of collective sacrifice by a private person” in Article 166(1) and Article 766(2) of the Civil Act and “the case of suspicion of serious human rights violations and manipulation,” shall be unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, etc.; hereinafter “instant decision of unconstitutionality”).

B. The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a request for adjudication on the constitutionality of the same kind, or where 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 where the relevant law or the provisions of the law are based on the premise of judgment (see, e.g., Supreme Court Decisions 91Nu1462, Feb. 14, 1992; 96Nu1627, Apr. 26, 1996).

Therefore, in a case where the decision of unconstitutionality of this case becomes effective, Article 2(1)3 of the previous Bankruptcy Adjustment Act or Article 166(1) and Article 766(2) of the Civil Act does not apply to a claim for damages arising from a public official’s unlawful performance of his/her duties in a case involving “a group sacrifice case of a private person” under Article 2(1)4 of the same Act, and Article 96(2) of the National Finance Act (see Supreme Court Decision 2018Da23686, Nov. 14, 2019) that provides for the period of extinctive prescription of the right to the payment of money to the State for the purpose of the payment of money to the State is based on such objective starting point (see Supreme Court Decision 2018Da23686, Nov. 14, 2019).

2. A. For reasons indicated in its reasoning, the lower court acknowledged the Plaintiffs’ claim for damages against the Defendant, who is the deceased Nonparty 1 (hereinafter “the deceased”)’s heir who was killed from July 1950 to August 1950 by the military personnel and the police of the Defendant, and the police around the time of Busan Citty mine, etc., pursuant to Article 2 of the State Compensation Act. Accordingly, the long-term extinctive prescription under Article 766(2) of the Civil Act and Article 32 of the former Accounting Act has expired, and the Defendant’s claim that the Defendant’s claim for the extinctive prescription constitutes an abuse of rights against the principle of good faith was dismissed.

B. However, the lower court’s determination is difficult to accept for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On June 25, 1950, upon the outbreak of Korean War, the Ministry of the Interior and Safety under the jurisdiction of the defendant took a preliminary inspection of members of the National Report Federation and persons in need of inspection established by the Government of the Republic of Korea to transfer to the next people and to manage and control the next people.

B) During that process, inmates in Daegu-type District, and persons subject to the National Report Federation, Daegu-gu, and Youngdong-dong, who were led from the Daegu-type District Court, were killed by the military police units belonging to the 22 joint and several police units and the police police officers in Daegu-gu area (hereinafter referred to as the “Miscot Mining Case”) at various places, such as Gyeongsan-si (hereinafter referred to as the “Miscot Mining Case”). From July 1950 to August 1950, 1950.

C) On January 19, 2006, Nonparty 2 filed an application for ascertaining the truth with respect to the persons involved in the Gyeongcot Mining incident, claiming that the deceased, his father, was the victim of the Gyeongcot Mining incident, and filed an application for ascertaining the truth with the committee for the committee for the committee for the adjustment of historical affairs for truth and reconciliation (hereinafter “the committee for adjustment”).

D) On November 17, 2009, the Korean War Settlement Commission rendered a truth-finding decision that confirmed or presumed that the deceased was a victim who was sacrific in the Gyeongcot Mining Incident.

E) Plaintiff 1 is the deceased’s spouse, and Plaintiff 2 is the deceased’s offspring. The Plaintiffs filed the instant lawsuit on May 15, 2017.

2) Examining the above facts in light of the legal principles as seen earlier, the Plaintiffs’ claim for damages constitutes the State’s compensation claim for damages incurred by a public official’s unlawful performance of duties in the case of a civilian group sacrifice as referred to in Article 2(1)3 of the previous Bankruptcy Adjustment 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 and Article 32 of the previous Accounting Act does not apply to the Plaintiffs’ claim for damages, and only the subjective starting point of counting under Article 766(1) of the Civil Act and the short

C. Nevertheless, the lower court, on the grounds as indicated in its reasoning, applied the provision that the Plaintiffs’ claim for damages became invalid in accordance with the Constitutional Court’s decision of unconstitutionality. In so determining, the lower court erred by misapprehending the legal doctrine on extinctive prescription, contrary to what is alleged in the grounds of appeal

Meanwhile, in a case where the past History Settlement Commission conducted a truth-finding on a civilian’s case of sacrifice under Article 2(1)3 of the Act, the period of extinctive prescription under Article 766(1) of the Civil Act as to the claim for damages by the victim and his/her bereaved family members is not the date of the truth-finding decision, but the date on which the notice of fact-finding decision was served (see Supreme Court Decision 2019Da220526, Mar. 26, 2020).

3. Therefore, 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 Seon-soo (Presiding Justice)