In a case where the victim's damage was caused and the damage was caused by the tortfeasor's illegal act, and there is a lack of mental ability or intelligence to recognize the fact practically and specifically, whether it can be said that the victim was aware of the damage and the perpetrator under Article 766 (1) of the Civil Code.

The fact that a victim or his legal representative is aware of a loss and a tortfeasor under Article 766(1) of the Civil Act refers to the actual and specific perception of the occurrence of the loss and the fact that the damage was caused by the tortfeasor's illegal act. Thus, if it is not recognized that the victim, etc. and his legal representative are practically and specifically aware of the occurrence of the loss and the fact that the damage was caused by the tortfeasor's illegal act, it cannot be said that the victim, etc. were aware of the damage and the perpetrator even if there were little circumstances about the situation of the accident after the occurrence of the snow accident. Thus, the short-term extinctive prescription under the above provision of the Civil Act does not run, and whether there was mental ability or intelligence is ultimately a matter of fact-finding in consideration of various circumstances in a specific case.

Article 766(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant) and 1 other (Law No. 4540, Jan. 12, 1990, Counsel for plaintiff-appellant)

Plaintiff-Appellee et al., Counsel for the plaintiff-appellant-appellee

Daegu Cultural Broadcasting Corporation (Attorney Choi Jae-ho, Counsel for defendant-appellant)

Daegu High Court Decision 93Na3777 delivered on June 2, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The fact that the injured party or his legal representative becomes aware of the damages and the perpetrator’s identity under Article 766(1) of the Civil Act means that the injured party or his legal representative is aware of the occurrence of the damages and the fact that the damages were caused by the tortfeasor’s illegal act (see, e.g., Supreme Court Decision 88Meu32371, Sept. 26, 1989; Supreme Court Decision 92Da42583, Dec. 8, 1992; etc.). Thus, if it is not recognized that the injured party, etc. committed the damages and that the damages were actually and specifically caused by the tortfeasor’s illegal act, it cannot be said that the injured party, etc. was aware of the damages and the tortfeasor’s identity after the occurrence of the snow accident. Thus, the short-term extinctive prescription under the above provision does not proceed, and whether such mental ability or intelligence was caused by the tortfeasor’s illegal act, the issue of finding facts should be determined by taking into account various circumstances in the specific case.

2. On July 24, 1991, the court below acknowledged the defendant's defense that the plaintiff's claim for damages caused by the traffic accident of this case occurred nine years prior to the filing of the lawsuit of this case had expired the short-term extinctive prescription under Article 766 (1) of the Civil Code, and acknowledged facts as stated in its holding that the plaintiff's admission period and discharge period caused by the accident of this case would lead to the mental state up to the date of the admission and discharge. In full view of these circumstances, the court below erred in the misapprehension of legal principles as to the facts of this case's tort, and rejected the plaintiff's allegation that the plaintiff suffered from the accident of this case's injury and the defendant's allegation that the plaintiff's damage of this case's injury did not go against the legal principles as to the fact-finding and the point of calculating the statute of limitations until the time when the plaintiff suffered the injury of this case was found to have been aware of the above facts.

3. Therefore, the appeal is dismissed, and all 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 Yong-hun (Presiding Justice)