[1] Whether the State is allowed to claim the completion of extinctive prescription in a case where “the Committee on the Settlement of History for Truth and Reconciliation” conducts a truth-finding process that ascertains or presumes a person subject to an application for truth-finding based on the victim’s request for truth-finding and exercises rights within a reasonable period of time (negative), and the scope of “reasonable period of time” in this case

[2] The limits of discretion of the fact-finding court in calculating the amount of consolation money for non-property damage suffered by tort, and the matters to be considered when calculating consolation money for the victims of the Korean War that had undergone the truth-finding process under the Framework Act on the Settlement of History before and after the Korean War, which was established under the Framework Act on

[1] Articles 2, 750, 766(1) of the Civil Act, Article 2(1), and 8 of the State Compensation Act, Article 32 of the former Accounting Act (repealed by Act No. 217, Sept. 24, 1951; Article 82 of the current National Finance Act); Articles 19(1), 22(1), (3), and 26 of the Framework Act on the Settlement of History for Truth and Reconciliation / [2] Articles 393, 751, and 763 of the Civil Act

[1] [2] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077)

See attached Table 1, 200,000,000

Korea

Gwangju High Court Decision 2012Na3752 decided November 21, 2012

Of the part of the judgment below against the defendant, the part ordering the deceased non-party 1 to pay consolation money unique to the deceased non-party 1 is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeals are all dismissed. The costs of appeal against the plaintiffs except the plaintiff 4, 5, 6, 12, 13, 14, 15, 16, 17 are assessed against the defendant.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the abuse of rights in the statute of limitations defense

A. The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of trust and good faith and the prohibition of abuse of rights, which are the major principles of the Civil Act. Therefore, inasmuch as an obligor has relied on the same attitude that the obligee would not invoke the prescription after the completion of extinctive prescription, and where an obligor exercised his/her right within a considerable period of time that the obligee could expect the obligee to exercise his/her right, the obligor’s assertion of extinctive prescription cannot be allowed as an abuse of rights against the principle of trust and good faith (see, e.g., Supreme Court Decision 2009Da66969, Sept. 8, 201). Determination of whether the obligor exercised his/her right within a reasonable period of time is based on a comprehensive consideration of the following: (a) relationship between the obligee and the obligor; (b) details, motive and developments leading up to the obligor’s act; (c) the obligor’s genuine intent and genuine intent to achieve

B. Inasmuch as the State, through the enactment of the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”), re-examines the historical facts prior to a few hundred years and declares to withdraw measures to recover damage to victims and their bereaved family members, and does not impose any restrictions on the method of implementation, it shall be deemed that the victim, etc. has declared that the victim, etc. would ultimately accept the method of judicial remedy seeking damages through the State’s claim, and the purport that the victim, etc. would not refuse compensation by asserting the new extinctive prescription in a specific litigation case is spread to the legal meaning derived therefrom.

Therefore, in a case where the State received an application to verify the truth of a victim who is subject to the application of the Act on the Settlement of History and concluded a truth-finding decision that confirmed or presumed as a victim by the Criminal Procedure Commission for Truth and Reconciliation established under the same Act (hereinafter “Settlement Commission”), it is reasonable to deem that, based on such decision, there are special circumstances to believe that the Defendant would not assert the extinguishment of right on the ground of the completion of extinctive prescription when the victim or his/her bereaved family members exercise their rights within a considerable period of time. Nevertheless, if the State claims the completion of extinctive prescription against the victim, etc., it constitutes an abuse of right against the principle of trust and good faith and thus is not allowed (see Supreme Court en banc Decision 201

However, denying the validity of the completion of prescription based on the principle of trust and good faith is extremely limited to cases where exceptions are granted to the system of extinctive prescription, which reflects the achievement of legal stability, the relief of difficulties in proving evidence, and the restriction on neglect of the exercise of rights, and thus, the “reasonable period” of the said exercise of rights cannot exceed three years, which is the short-term extinctive prescription period under Article 766(1) of the Civil Act (see Supreme Court en banc Decision 2012Da202819, May 16, 2013).

C. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination was based on the following: (a) the deceased Nonparty 2 (hereinafter “the deceased”) filed a lawsuit seeking compensation against the Defendant on March 14, 2012, which was the date of the truth-finding decision, and (b) the lower court ordered the Defendant to pay consolation money within 0 years after the date of the truth-finding decision, on August 18, 2009, when the lower court confirmed the deceased as a victim of the Mining Report Federation’s case; and (c) the lower court ordered the Defendant to pay consolation money within 0 years after the date of the truth-finding decision, on March 14, 2012, when the Plaintiffs were expected to take appropriate measures for restoring the deceased’s honor and compensating the deceased’s damages through legislation.

Examining these facts in light of the aforementioned legal principles, the Plaintiffs’ claim for damages of this case, the bereaved family members of the deceased, appears to have exercised their rights within a reasonable period from the date of the truth-finding decision of this case except for the part of the Plaintiff 4, etc. on the deceased Nonparty 1’s inherent consolation money, and accordingly, the Defendant’s defense of extinctive prescription cannot be allowed as it constitutes an abuse of rights against the principle of good faith. On the other hand, the part of the Defendant’s claim for consolation money unique to Nonparty 1 cannot be deemed to have exercised its rights within a reasonable period from the date of fact-finding decision of this case. Thus,

D. Therefore, the judgment of the court below which rejected the defendant's defense of extinctive prescription regarding the remainder of the claim for damages except for the deceased non-party 1's unique consolation money and the remainder of the claim for damages by the plaintiffs is just in its conclusion, and it did not err by misapprehending the legal principles as to the abuse of rights of the deceased non-party 1's defense of extinctive prescription or by failing to exhaust all necessary deliberations, but the judgment of the court below which rejected the defendant's defense of extinctive prescription against the plaintiff 4 et al. as to the deceased non-party

2. As to the misapprehension of legal principle as to the calculation of consolation money

As to the amount of consolation money for non-property damage suffered by tort, the fact-finding court may determine it at its discretion in consideration of various circumstances, but it does not mean that the judge's discretion is allowed to calculate consolation money. Therefore, even in the calculation of consolation money, there is a limit to determine the amount so as to be consistent with the ordinary legal sentiment, and it naturally goes beyond its limit, and it goes beyond the bounds of the discretion of the fact-finding court to calculate consolation money which goes against the ideology of fair sharing of damages and the principle of equity.

The case of sacrifice before and after the Korean War, which was conducted a truth-finding decision under the Act on the Settlement of Wars, was 60 years since the time when the damage occurred, and the Act on the Settlement of Wars also aims at the uniform recovery of the damage, and there are special circumstances, such as the victim’s number is very large and nationwide distribution. Therefore, in determining the amount of consolation money, equity among the victims should also be considered in determining the amount of consolation money, and appropriate adjustment is also necessary (see Supreme Court en banc Decision 2012Da202819, supra).

In light of the above legal principles, even though multiple similar cases have already been determined, it is somewhat inappropriate for the court below to recognize consolation money by applying the substantially increased standard without disclosing other circumstances that could vary in the amount of consolation money in this case. However, considering the reasoning of the court below in light of the records, the amount of consolation money recognized by the court below is not to be deemed to be significantly contrary to the principle of equity. Therefore, it cannot be said that there was an error deviating from the limits of discretion of the

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part ordering the payment of consolation money unique to the deceased non-party 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All remaining appeals are dismissed, and the costs of appeal against the remaining plaintiffs are borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Poe-young (Presiding Justice)