[1] In a case where there was a de facto disability that could not exercise rights objectively before the expiration of the extinctive prescription, whether the obligor is allowed to assert the completion of the extinctive prescription (negative)

[2] The standards for determining whether an obligee exercised his/her right within a reasonable period from the time the de facto disability that could not objectively expect the exercise of right is terminated, and the scope of "reasonable period" in a claim for damages caused by a tort

[3] Where a person who received a final and conclusive judgment of conviction based on evidence collected by an investigation agency due to an illegal act, etc. files a claim against the State for compensation for damages, the defense of extinctive prescription by the State of the debtor becomes an abuse of rights, and the reasonable period for the creditor to exercise the right to prevent the State from

[4] In exceptional cases where damages for delay of the compensation obligation due to a tort shall be calculated from the date of closing argument in fact-finding proceedings, whether the principal of the compensation can be calculated in consideration of the circumstances where the compensation is delayed (affirmative), and in cases of tort committed by public officials due to their human rights violations, matters to be considered when calculating

[1] Articles 2, 162, and 166 of the Civil Act / [3] Articles 2, 179, and 766(1) of the Civil Act / [3] Articles 2, 179, and 766(1) of the Civil Act; Articles 2(1) and 8 of the State Compensation Act; Article 96 of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act (Act No. 8050 of Oct. 4, 2006); Articles 5(1) and (2), and 6(3) of the Criminal Compensation and Restoration of Honor Act; Article 2 of the Enforcement Decree of the Criminal Compensation and Restoration of Honor Act / [4] Article 751 of the Civil Act

[1] [2] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 107) / [1] Supreme Court Decision 93Da27604 Decided December 9, 1994 (Gong195Sang, 434), Supreme Court Decision 2009Da66969 Decided September 8, 201 (Gong2011Ha, 2046) (Gong2011Ha, 2046), Supreme Court Decision 201Da36091 Decided October 13, 201 (Gong201Ha, 2344) / [3] Supreme Court Decision 2013Da201844 decided December 12, 2013; Supreme Court Decision 2013Da2014384 decided December 13, 2014]

Plaintiff 1 and five others (Law Firm Gyeongsung, Attorneys Mi-American et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2012Na93543 decided May 2, 2013

All appeals are dismissed. The costs of appeal are assessed against the defendant.

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

1. Regarding ground of appeal No. 1

A. The statute of limitations proceeds from the time when an objective right arises and it is possible to exercise the right, and does not proceed during the period during which the right is not possible. Here, the term “non-exercise of the right” refers to a disability as to the exercise of the right, for example, where the period has expired or is not fulfilled, and where the exercise of the right is practically difficult. However, the exercise of the defense right on the ground of the statute of limitations is governed by the principles of good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act, and it is not permissible for the obligor to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith (see Supreme Court Decision 93Da27604 delivered on December 9, 194, etc.).

Meanwhile, even in cases where there exists an objective disability that makes it impossible to expect a creditor to exercise his/her right as above, if such disability has been terminated, the obligor’s defense of extinctive prescription can be prevented only within a reasonable period from exercising his/her right. Whether the right can be deemed to be exercised within a reasonable period should be determined by comprehensively taking into account various circumstances, such as the relationship between the obligee and the obligor, the cause of the claim for damages, the cause of the obligee’s delay in exercising his/her right, and the progress from the time when the obligee filed a lawsuit claiming damages. However, since the extinctive prescription system is based on the ideology of achieving legal stability and remedy for the difficulty in proving it, it is very exceptional to deny the validity of extinctive prescription based on the principle of trust and good faith even though it falls under the requirements for its application. Therefore, the “reasonable period” of the above exercise of right should be limited to a short period corresponding to the suspension of prescription under the Civil Act, and in particular, even in cases where it is inevitable to extend the period due to special circumstances, it should not exceed three years, the short period of extinctive prescription period (see Supreme Court en banc Decision 20120.

B. In a case where a State agency received a public prosecution based on evidence, etc. collected by an illegal act in the course of investigation, and a final judgment of conviction was rendered, 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 due to an illegal act of the State agency, etc., it shall be deemed that there was a de facto obstacle that the obligee could not expect the claim for damages until the judgment of innocence becomes final and conclusive in the retrial procedure. Therefore, the defense of the completion of extinctive prescription by the State, which is the debtor, cannot be allowed as an abuse of rights against the principle of good faith. However, barring special circumstances, the obligee

In such a case, the determination on the basis of whether a lawsuit was filed as to whether a person has exercised his/her right within the said period ought to be based on whether a claim for damages was filed. However, where a judgment of innocence has become final and conclusive, a creditor may first file a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act (hereinafter “Criminal Compensation Act”) which can be said to be more simple procedures prior to a claim for civil damages. However, the amount of criminal compensation shall be calculated by taking into account all the relevant circumstances, such as the type of detention and the long term of detention, and the amount of compensation per day of detention shall be calculated by setting the minimum daily wage amount under the Minimum Wage Act of the year in which the cause for the claim for damages occurred to five times the amount thereof (Article 5(1) and (2) of the Criminal Compensation Act, and Article 2 of the Enforcement Decree thereof). In addition, Article 6(3) of the Criminal Compensation Act provides that “When a person entitled to damages under the same Act has received compensation for the same cause, the amount of such compensation shall be determined after deducting the amount of compensation.”

Therefore, even if a creditor did not file a lawsuit claiming compensation within six months from the date when the judgment of innocence became final and conclusive, in cases where a claim for compensation under the Criminal Compensation Act was filed within such period, the "reasonable period" of the exercise of the right to prevent the defense of extinctive prescription exists. In such cases, if a claim for compensation is filed within six months from the date when the decision on criminal compensation becomes final and conclusive, the right may be deemed to have been exercised within a reasonable period. Provided, That even in such cases, the period shall not exceed three years from the date when the judgment of innocence which became final and conclusive after the exercise of the right became final and conclusive (see Supreme Court Decision 2013Da201844, Dec. 12, 2013).

C. According to the reasoning of the judgment below and records, on September 16, 1985, the plaintiff 1 was prosecuted for violation of the National Security Act, including ① illegally arrested and detained investigators belonging to the National Defense Security Headquarters (hereinafter referred to as the "Security Headquarters"), Seoul, 506, and false confessions as to the suspected facts, and the defendant 2 was prosecuted for 10 months since 1982 to 1984, and the defendant was found guilty for 15 years and 15 years since 1986 to 20 months since 206 to 198, and the defendant was found guilty for 10 months since 20 months since 196 to 3 months since 196 to 198.

Examining such factual relations in light of the legal principles as seen earlier, it is reasonable to deem that there was an objective disability that the Plaintiffs could not expect the Plaintiffs to exercise the right to claim damages of this case against the Defendant until April 14, 2011, which became final and conclusive. Moreover, Plaintiff 1 filed a claim for criminal compensation under the Criminal Compensation Act within six months from the date on which the ground for such disability became final and conclusive, and the Plaintiffs filed the instant lawsuit within six months from the date on which the judgment on criminal compensation became final and conclusive, and it is reasonable to deem that the Plaintiffs exercised the right within a reasonable period that could prevent the Defendant’s defense against the statute of limitations

Therefore, although some of the reasoning of the judgment below on this part is insufficient, the court below rejected the defendant's defense of extinctive prescription by deeming it as an abuse of rights against the principle of good faith. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misunderstanding the legal principles on the abuse of rights against

2. Regarding ground of appeal No. 2

In calculating consolation money due to a tort, considering the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim's intentional or negligent act, motive and cause of the harmful act, and the perpetrator's attitude after the tort, together with the circumstances on the part of the perpetrator, also conform to the principle of fair liability for damages. Considering such various circumstances, the court may determine the amount of consolation money at its own discretion (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 1999; 2007Da7149, Dec. 24, 2009). Meanwhile, in exceptional cases where compensation liability due to a tort should be calculated from the date of the closure of arguments in fact-finding proceedings, it is necessary to determine consolation money at the time of the victim's occurrence of human rights violations (see, e.g., Supreme Court Decision 201Da7149, Dec. 24, 2009).

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 against the principle of equity. Furthermore, it is not recognized that the court below erred in the misapprehension of legal principles or law as

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)