(영문) 대법원 2020.5.28. 선고 2018다265768 판결

A. 1) According to Article 8 of the State Compensation Act, Articles 166(1) and 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; Article 82 of the former Accounting Act (amended by Act No. 217 of Sept. 24, 1951; hereinafter the same shall apply] of the State Compensation Act, Article 166(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. 217 of Sep. 24, 1951; hereinafter the same shall apply], with respect to the State’s claim for compensation, the victim or legal representative becomes aware of the damage and the perpetrator’s identity (Subjective starting point of calculation under Articles 166(1) and 76(1)

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 Truth and Reconciliation (hereinafter "the Act on the Settlement of History") and Article 2 (1) 4 of the Act on the Settlement of Truth and Reconciliation are unconstitutional (hereinafter "the decision of unconstitutionality of this case").

2) The effect of the decision of unconstitutionality of the Constitutional Court is that the Constitutional Court has made a request for adjudication on unconstitutionality of the same kind to the Constitutional Court before it makes a decision on unconstitutionality as well as that of the relevant case where a request for adjudication on unconstitutionality has been made in a court, but no request for adjudication on unconstitutionality of the same kind has been made in a separate case from the relevant case where a request for adjudication on unconstitutionality has been made in a court, but the relevant law or the provisions of the law have impact on all general cases pending before the court as the premise of the judgment (see, e.g., Supreme Court Decisions 91Nu1462, Feb. 14, 1992; 96Nu1

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 2 (1) 4 of the same Act, with respect to a claim for damages caused by a public official's unlawful performance of duties, the extinctive prescription based on the starting point of objective starting under Articles 166 (1) and 766 (2) of the Civil Act (hereinafter referred to as "long-term extinctive prescription"), does not apply to a claim for damages caused by a public official's unlawful performance of duties, and Article 96 (2) of the National Finance Act (Article 32 of the previous Accounting Act) that provides for the period of extinctive prescription of the right to the payment of money to the State for five years (see, e.g., Supreme Court Decision 2018Da23686, Nov. 14, 2019) does not apply where such objective starting point is premised.

B. 1) On the grounds indicated in its reasoning, the lower court rejected the Plaintiffs’ claim by rejecting the Plaintiffs’ assertion that the Defendant’s claim for damages was abuse of rights against the principle of trust and good faith, on the grounds that the Defendant’s claim for damages incurred by the deceased and their bereaved families by murdering the deceased without due process. However, even if the Plaintiffs were victims of the Ulsan Franchising accident and their inheritors, the Plaintiffs’ claim for damages had already been completed under Article 766(2) of the Civil Act and Article 32 of the former Accounting Act.

2) However, it is difficult to accept such determination by the lower court for the following reasons.

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

(1) Police officers belonging to the police station in Ulsan-gun, Ulsan-gun, and police officers belonging to the relevant regional army corps (CIC), etc. called a National Assembly member, etc. from the end of June 1950 to the end of August 1950, after the outbreak of the Korean War, and were detained in a detention room within the Ulsan-gun Police Station, military unit, etc., and were detained in the Ulsan-do police station. After receiving instructions from the upper court, the police officers conducted preliminary inspection of the detained him/her on the ground that a considerable number of the detained police officers could co-ordinate the National Assembly of the Republic of Korea from August 5 to August 26, 1950 (hereinafter referred to as the “Masan-gun report case”). In total, the Masan-gun, Masan-gun and Masan-gun, Masan-gun, Masan-gun, Masan-gun, Masan-gun, Masan-gun, 1950 to the end of August 26, 1950.

On the other hand, the defendant, around December 1948, prepared a list of affiliated persons, and around 1975, prepared a list of affiliated persons based on various data up to the time of 6/25, the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons - the list of affiliated persons was designated as Class 3 confidential in accordance with the Security Business Regulations, which was the Presidential Decree

(2) On November 27, 2007, the Committee on the Settlement of History for the Truth and Reconciliation (hereinafter referred to as the “Committee on the Settlement of History”) conducted a truth-finding on the case of the Ulsan National Assembly on November 27, 2007, and accordingly, it is the fact-finding that the deceased A, the net B, the network C, the network D, the network E, and the network F, who were at issue in the instant case, is a victim of a sacrifice in the Ulsan National Assembly case.

On the other hand, G is indicated in the truth-finding decision as follows: "The fact that G had been released as a preliminary investigator was confirmed."

The deceased H, the network I, the network J, the network K, the network M, the network M, the network N, the networkO, and the network P did not confirm the fact-finding decision as the victim, but the name of the above deceased was stated in the list attached to the above fact-finding decision (hereinafter referred to as “the deceased in the list of the wife”) in the list of the wife attached to the above fact-finding decision.

(3) The Plaintiffs asserted that they are bereaved family members of each deceased and filed the instant lawsuit on August 17, 2016.

B) Examining the above facts in light of the legal principles as seen earlier, in the event that the deceased and the deceased were the victims of the U.S. Report No. 1 and the Plaintiffs were the heirs on the list of the wife list of this case through the truth-finding decision, the Plaintiffs’ claim for the State’s compensation for damages incurred due to 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 Act on the Settlement of History, and the validity of the decision of unconstitutionality does not apply to the long-term extinctive prescription under Articles 166(1) and 766(2) of the Civil Act, and Article 32 of the former Accounting Act does not apply, and only the subjective starting point of counting under Article 766(1) of the Civil

C) Nevertheless, the lower court, based on its stated reasoning, applied the provision that the Plaintiffs’ claim for damages became invalid according to the decision of unconstitutionality. In so determining, the lower court erred by misapprehending the legal doctrine on extinctive prescription, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal

Meanwhile, in a case where the past History Settlement Commission conducted a truth-finding on the case of a civilian victim’s sacrifice under Article 2(1)3 of the Act, the date when the victim and his/her bereaved family members knew of the occurrence of damage and of the perpetrator’s awareness of the occurrence of a short-term extinctive prescription under Article 766(1) of the Civil Act as to the right to claim damages by the victim and his/her bereaved family members is not the date of the truth-finding decision, but the date when the notice of the truth-finding decision was served (see Supreme Court Decision 20

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.