[1] Whether it is permissible for the State 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 that confirms 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 considerable period of time (negative), and whether the same applies to a case where the said Committee commenced an ex officio investigation pursuant to Article 22(3) of the Framework Act on the Settlement of History for Truth and Reconciliation and conducted a truth-finding decision (affirmative)

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766(1) of the Civil Act, Article 2(1), and 8 of the State Compensation Act, Article 32 of the former Accounting Act (repealed by Act No. 217, Sept. 24, 1951; Article 82 of the current National Finance Act); Articles 19(1), 22(1), (3), and 26 of the Framework Act on the Settlement of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

Plaintiff 1 and 3 others (Law Firm Seom, Attorney Lee In-ia, Counsel for the plaintiff-appellant)

Korea

Gwangju High Court Decision 2012Na4106 decided October 31, 2012

All appeals are dismissed. The costs of appeal 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 good faith and the prohibition of abuse of rights, which are the major principle of the Civil Act. As such, inasmuch as an obligor has relied on the same attitude that the obligor would not invoke the prescription after the completion of extinctive prescription, and where an obligor exercised his/her right within a reasonable period where the obligee could expect the obligee to exercise his/her right, the obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of rights against the principle of 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) the content, motive and developments leading up to the obligor’s act; (c) the obligor’s genuine intent to achieve by the obligor

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 for ascertaining 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 Defendant’s “former History Settlement Commission for Truth and Reconciliation” established under the same Act (hereinafter “Settlement Commission”), it is reasonable to deem that there is a special circumstance to believe that the Defendant would not assert the extinguishment of right on the basis 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 rights against the principle of trust and good faith, and thus, it cannot be allowed (see Supreme Court en banc Decision 2012Da202819, May 16,

In addition, even if there was no request from the victim to verify the truth, the Mediation Committee may conduct ex officio an investigation when it is deemed that there is a reasonable ground to believe that the case constitutes a fact-finding case, and that the truth-finding is serious," under Article 22(3) of the Act on the Settlement of History, in a case where the court conducted ex officio an investigation and confirmed or presumed the victim as a victim, taking into account the importance of the case in question, and the legislative purpose of the Act on the Settlement of History and the contents of the above provision, it shall be deemed that the State’s intent to restore the victim’s reputation and accept the victim’s reputation without any reason to treat it differently from the case where the truth-finding decision was made by the request to verify the truth in terms of granting trust to the victim, and thus, it shall be deemed that the State’s assertion of extinctive prescription against the victim or

C. According to the reasoning of the lower judgment and the evidence duly admitted, the court below ex officio confirmed the deceased Nonparty (hereinafter “the deceased”) as the victim by the court below’s findings of fact-finding on December 30, 2008 after the enforcement of the Act on the Settlement of History, and found the fact that the Plaintiffs, the bereaved family members of the deceased, did not take any affirmative measures such as legislation for the recovery of damage, and that the Defendant filed a lawsuit against the Defendant for the instant damages claim at the end of 2 years and 11 months from the date of the findings of fact-finding.

Examining these facts in light of the legal principles as seen earlier, the Plaintiffs, the bereaved family members of the deceased, appear to have filed a lawsuit claiming damages of this case within a reasonable period from the date of the truth-finding decision of this case, and the Defendant’s assertion on the completion of extinctive prescription as to the claim for damages of this case constitutes an abuse of rights

D. Therefore, the lower court’s determination rejecting the Defendant’s defense of extinctive prescription is justifiable in its conclusion, and it did not err by misapprehending the legal doctrine on the abuse of rights by the extinctive prescription defense or by failing to exhaust all necessary

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 History, was over 60 years from the time of the occurrence of the damage, and the Act on the Settlement of History 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 be considered as important, and appropriate adjustment is also necessary based on the number of the bereaved family members claiming compensation (see the aforementioned 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 the court below erred by exceeding the limits of discretion of the fact-finding court

3. Conclusion

Therefore, 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 Park Poe-young (Presiding Justice)