2013Da215614, damages, etc.

person

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10, J. 10

11, K

12. L.

13. M;

14.N

15.O

16. P;

17. Qua

18, R

Korea

Seoul High Court Decision 2013Na2008548 Decided October 24, 2013

June 24, 2015

The part of the lower judgment against Plaintiff A is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's remaining appeals except the plaintiff A are all dismissed.

Of the costs of appeal, the costs of appeal between the Defendant and the Plaintiff A are assessed against the Defendant.

The grounds of appeal are examined.

1. With respect to the Plaintiff’s appeal, the lower court dismissed the Plaintiff’s claim for consolation money on the ground that there is no evidence to prove that the Plaintiff, who was a dead body of the deceased and a dead body of the deceased, sustained mental pain beyond the permissible limit under the generally accepted social norms due to the death of the deceased. The spouse of the victim who lost his/her life due to other person’s tort may claim consolation money pursuant to Articles 750 and 751 of the Civil Act by proving that the spouse of the victim’s lineal descendant who lost his/her life caused such mental pain. According to the records, the Plaintiff can be aware of the fact that the Plaintiff lived together as the deceased’s large body and directly recovered the deceased’s body on the ground that he/she was a member of the National Report Federation while living together with the deceased’s large body at the time. Thus, the Plaintiff may claim consolation money in light of the empirical rule and it is reasonable

The lower court determined otherwise by misapprehending the legal doctrine on the claim for consolation money, thereby adversely affecting the conclusion of the judgment.

2. As to the defendant's appeal

A. As to the first ground for appeal, since the instant case occurred before the State Compensation Act was enacted, the Plaintiffs are not entitled to claim for State compensation, but Article 27 of the Constitution of the Republic of Korea (which was enacted on July 17, 1948 and amended on June 15, 1960) provides that "any person who suffers damage due to a public official's tort in the course of performing his duties may claim for compensation against the State or a public organization," so this part of the grounds for appeal is without merit.

On the other hand, the ground of appeal that the lawsuit of this case constitutes a party suit under public law and constitutes an infringement of exclusive jurisdiction is not accepted as it is merely an independent opinion.

B. As to the grounds of appeal Nos. 2 and 3, based on the adopted evidence, the lower court determined that the Defendant has a duty to compensate the deceased and their bereaved family members for mental damage, on the ground that the military police officers belonging to the Defendant committed murder of the deceased without any justifiable reason or procedure and infringed on the right to a trial in accordance with due process, which is the fundamental rights of the people guaranteed by the Constitution, solely on the ground that the military police officers belonging to the Defendant were the National Report Federation of Korea in July 1950. In light of the relevant legal principles and records

Meanwhile, as the grounds of appeal, the civilian murder by the military police officers belonging to the defendant cannot be viewed as a tort on the duty of a public official, and thus, it is not subject to a claim for national compensation. However, this case is not an individual deviation by some military police officers, but an organized group genocide by the military police officers belonging to the defendant, and at least it is closely related to the public official's duty in appearance at least objectively.

C. Regarding ground of appeal No. 4

1) The exercise of the right of defense on the ground of extinctive prescription is subject to the general principles of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, if an obligor had shown the same attitude that the obligor would not invoke the statute of limitations after the completion of extinctive prescription and had the obligee trust it, and if an obligee exercised his right within a reasonable period where the obligee could expect the exercise of right, the obligor’s assertion of the statute of limitations cannot be allowed as abuse

The term "reasonable period of exercise of rights" should be limited to a short period corresponding to the suspension of prescription under the Civil Act, barring special circumstances. Even in cases where it is inevitable to extend the period due to special circumstances in individual cases, in light of the fact that in the case of a claim for damages due to tort, the period cannot exceed three years, which is the short-term extinctive prescription period stipulated under Article 766(1) of the Civil Act, even if there is no way to extend the period, it would not constitute an abuse of rights against the principle of trust and good faith if the State, which is the debtor, exercises its rights beyond three years after the date of the determination of truth-finding and reconciliation in the case of sacrifice before and after the Korean War (hereinafter referred to as the "Regulatory Commission").

2) According to the reasoning of the judgment below, the court below found the following facts: (a) on August 18, 2009, the court below conducted a truth-finding survey on the deceased T on November 10, 2009; and (b) on August 20, 2012, the plaintiffs, who were the bereaved family members of the deceased, filed the instant lawsuit against the defendant on August 20, 2012, which was within the three-year period from the deceased; and (c) on August 18, 2012, which was 3 years from August 18, 2012, 209, filed the instant lawsuit within the three-year period from the date of the truth-finding survey; and (d) in light of the aforementioned legal principles, insofar as the instant lawsuit was filed within three years from the date of the truth-finding survey, the defendant’s assertion of the completion of extinctive prescription cannot be allowed as abuse of rights against the principle of trust and good faith.

The court below rejected the defendant's defense of extinctive prescription on the premise that the determination of whether the plaintiffs filed a lawsuit within a reasonable period should be based on the date of receipt of the truth-finding decision, and on the premise that the plaintiffs filed the lawsuit within three years from the date of receipt of the fact-finding decision, and thus, the defendant's assertion of the completion of extinctive prescription constitutes an abuse of rights against the principle of good faith. The court below erred by misapprehending the legal principles as seen earlier, which should be determined based on the date of

D. As to the amount of consolation money for emotional distress inflicted by tort as to Article 5 of the Reasons for Appeal, a fact-finding court may determine the amount at its discretion, taking into account all the circumstances (see, e.g., Supreme Court Decision 2013Da200223, Sept. 12, 2013).

Examining the reasoning of the judgment below in light of the records, since the amount of consolation money recognized by the court below cannot be deemed as significantly contrary to the principle of equity, there is no error of law by exceeding the limits of the fact-finding court's discretion on the calculation

E. As to the appeal against the plaintiff A, the ground of appeal against the plaintiff was accepted by the plaintiff, and as long as the part against the plaintiff A is reversed, this part of the judgment below shall not be judged separately.

3. Conclusion

Therefore, the part of the lower judgment against Plaintiff A is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All appeals against the Plaintiffs other than Plaintiff A 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 Min Il-young

Justices Park Young-young

A person shall be appointed.