[1] Where an assertion for the completion of extinctive prescription is not permissible as an abuse of right against the principle of good faith

[2] The case affirming the judgment below that the State's defense of extinctive prescription cannot be allowed as an abuse of right against the principle of good faith, since it acknowledged the State's liability for compensation against a person who was convicted of committing a crime, such as espionage, after receiving adviser under illegal confinement

[3] The initial date in which damages for delay of compensation liability due to tort occurred where a long period of three months has elapsed between the time of tort and the time of the closing of argument (=the date on which the arguments in fact-finding are closed)

[4] In exceptional cases where damages for delay caused by tort shall be deemed to have arisen from the date on which the arguments in fact-finding are concluded, whether the principal of consolation money may be increased at the time of the conclusion of arguments (affirmative)

[5] The case reversing the judgment of the court below that the damages for delay from the time of the tort occurred to the time of the closure of argument, and reversing and returning the part of the principal of the consolation money as well as the part of the judgment of the court below

[1] The exercise of the obligor’s right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, in special circumstances, such as where the obligor has made it impossible or considerably difficult for the obligee to exercise the obligee’s right or the interruption of prescription before the completion of the statute of limitations, has acted to make such an obligee believe it is unnecessary, has objectively obstructed the obligee from exercising its right, or the obligor has made the right holder believe that the obligor would not invoke the statute of limitations after the completion of the statute of limitations, or where there are other special circumstances, such as where the obligor has made the obligee believe that the obligor would not invoke the statute of limitations, there is a great need to protect the obligee, and where other creditors of the same condition receive the repayment of the obligation, etc.

[2] The case affirming the judgment of the court below that since police investigators organized evidence by the method of aiding and abetting Gap in illegal confinement and receiving false confessions against espionage, Gap was detained, convicted and convicted, and the execution of the sentence was made, Gap's tort was recognized as compensation liability pursuant to the State Compensation Act for all non-property damage suffered by Gap and his family, Gap was an objective obstacle that could not claim compensation against the State, and the need to protect Gap who is the victim was serious and unfair, while recognizing the State's refusal of performance is remarkably unfair and unfair, the State's defense of expiration of extinctive prescription cannot be allowed as abuse of rights against the principle of trust and good faith.

[3] Since the victim could continuously enjoy the legal interests suffered by tort if there was no specific demand for performance, as a matter of principle, liability for damages arising from tort shall be deemed to have occurred at the same time in light of the concept of fairness, even if there was no demand for performance. However, in calculating consolation money, all circumstances that occurred until the time of the conclusion of arguments at fact-finding trials, as well as the national income level or monetary value, which serves as the basis for calculating consolation money, should also be reflected at the time of the conclusion of arguments. If the amount of consolation money is determined without any change in the monetary value at a time near the time when the tort occurred, it shall not be particularly problematic even if damages for delay occur at the time of the establishment of tort. However, even if there was a considerable change in the monetary value at the time of the conclusion of arguments at the time of the tort and the time of the conclusion of arguments at the time of the arguments at fact-finding proceedings, the damages for delay shall be calculated entirely from the time of the conclusion of arguments at which there was no change in the monetary value at the time of the arguments at the time of the arguments at fact-finding.

[4] In exceptional cases where damages for delay due to tort shall be deemed to accrue from the date of the closing of argument in the fact-finding court, which is the basis for calculating the consolation money, the damages for delay shall not be added at the time of the closing of argument in logic, and as a result, unlike the cases where damages for delay is imposed from the time of tort at which the liability for consolation money was established to the time of the closing of argument, there is room to appropriately increase the amount of the consolation money at the time of closing of argument, taking into account the circumstances where the damages for delay for a considerable period of time is delayed

[5] The case reversing and returning the part concerning the principal of the consolation money as well as the part concerning the principal of the consolation money, on the ground that the court below erred by misapprehending the legal principles on the initial date of damages for delay of the compensation liability due to the tort, and in such a case, there may be room for an adequate increase of the principal of the consolation money at the time of the closing of argument in consideration of the circumstance where the compensation is delayed from the time of the tort to the time of the closing of argument, even though the police investigator's liability for

[1] Articles 2 and 162 of the Civil Act / [2] Articles 2, 166(1) of the Civil Act, Articles 2(1) and 8 of the State Compensation Act, Article 96 of the former Budget and Accounts Act (repealed by Article 2 of the Addenda to the National Finance Act, Act No. 8050 of October 4, 2006) (see Article 96 of the current National Finance Act) / [3] Articles 393, 750, 751, and 763 of the Civil Act / [4] Articles 393, 750, 751, and 763 of the Civil Act / [5] Articles 393, 750, 751, and 763 of the Civil Act / [5] Articles 763, 751, and 763 of the Civil Act, Article 2(1) of the State Compensation Act

[1] Supreme Court Decision 2002Da32332 Decided October 25, 2002 (Gong2002Ha, 2849) Supreme Court Decision 2004Da33469 Decided May 29, 2008 (Gong2008Ha, 1109) Supreme Court Decision 2010Da8266 Decided June 10, 2010 (Gong2010Ha, 1365)

Plaintiff 1 and six others (Attorney Dub-won, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2009Na50751 decided November 13, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Whether the defendant's defense of extinctive prescription constitutes an abuse of rights (the defendant's ground of appeal No. 2)

The exercise of the obligor's right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, in special cases where the obligor has made it impossible or considerably difficult for the obligee to exercise the obligee's right or the interruption of prescription prior to the completion of the statute of limitations, or acted to make it unnecessary to take such measures; the obligee objectively obstructed the obligee from exercising its right; or the obligor has shown the same attitude that the obligor would not invoke the statute of limitations after the completion of the statute of limitations; the obligor has made the obligee trusted it; the obligor has made the right holder believe it; the obligor has the need to protect the obligee; and other creditors under the same conditions receive the repayment of the obligation; and there is considerable need to recognize the refusal of the performance of the obligation significantly unfair or unfair, the obligor's assertion for the completion of the statute of limitations cannot be allowed as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decisions 2002Da3232, Oct. 25, 2002>

According to the reasoning of the judgment below, the court below rejected the defendant's defense of extinctive prescription that "the plaintiffs' right to claim compensation of this case expired since the lawsuit against the defendant was filed only on April 23, 2008 after the five-year extinctive prescription period had elapsed since the lawsuit against the plaintiff 1 was completed and the execution of the punishment was completed, by manipulating evidence by means of illegal confinement and adviser's illegal confinement and adviser, thereby causing the plaintiff 1 to be detained later and convicted, resulting in execution of the sentence. The defendant held that the defendant is liable for consolation money under the State Compensation Act for all non-property damages suffered by the plaintiffs due to the illegal acts of the public officials belonging to the defendant."

① In other words, Plaintiff 1 filed a petition for review on the basis of the truth-finding decision of the past History Settlement Commission. Since it was revealed to some extent that investigators were illegal confinement and adviser’s act through the truth-finding decision, the review was accepted by the court and sentenced to not guilty. Before the new judgment becomes final and conclusive, it is difficult to expect that Plaintiff 1 filed a lawsuit seeking compensation against the Defendant on the grounds of an unlawful act committed by a public official, such as an investigator, prosecutor, and judge, etc., who caused a mistake in the past conviction, based on the premise that the conviction was erroneous in the past, and that it would be difficult to expect that it would be unfair from ordinary perspective to view that the Defendant would have suffered damages against the Defendant during the period of time until March 18, 2008, which was issued by the past History Settlement Commission, and that there was an objective obstacle that the Plaintiffs could not claim compensation for damages against the Defendant during the period of time, and that the Plaintiffs might not have suffered any disadvantage due to the Defendant’s unlawful confinement and adviser’s unlawful acts.

In light of the above legal principles and records, the above judgment of the court below is just and there is no error of misconception of facts or misapprehension of legal principles as otherwise alleged in the ground of appeal.

2. As to the starting date of the damages for delay on the consolation money of this case (as to the Defendant’s ground of appeal No. 4)

According to the reasoning of the judgment below, the court below held that the defendant is liable to pay damages for delay from April 1, 1975, which can be seen as the last tort committed by police investigators of this case, with respect to each of the principal amount of consolation money recognized to the plaintiffs.

However, we cannot accept this part of the judgment of the court below for the following reasons.

Of course, inasmuch as the victim could have continuously enjoyed legal interests that he suffered without tort, as a matter of principle, liability for damages arising from tort should be deemed to have occurred at the same time in light of the concept of fairness, even if there is no other peremptory notice. However, in calculating consolation money, all circumstances arising up to the time of the conclusion of fact-finding proceedings should be considered, as well as the national income level or monetary value, etc., which serves as the basis for calculating consolation money, should be reflected at the time of the conclusion of arguments. If consolation money is determined without any specific change in the value of currency at the time near the time when tort was committed, it would be particularly problematic even if damages for delay were incurred at the time of establishment of tort. However, if it is deemed that there was a considerable change in the value of consolation money after the lapse of 7 months at the time of the conclusion of arguments in tort and that damages for delay occurred at the time of the conclusion of arguments in this case, it would be deemed that there were no significant increase in the value of consolation money at the time of conclusion of arguments in this case. This would be an obvious problem.

In the end, the court below erred by misapprehending the legal principles on the initial date of damages for delay due to tort, and it is clear that such violation affected the judgment. The defendant's ground of appeal No. 4 pointing this out is with merit.

Meanwhile, in exceptional cases where damages for delay caused by tort shall be deemed to have occurred from the date of the closing of argument at the court of fact-finding, which is the basis for calculating the consolation money, as seen above, the damages for delay cannot be added at the time of the closing of argument at the court of fact-finding, and as a result, unlike the case where damages for delay are to be paid from the time of tort where the liability for consolation money is established until the time of closing of argument at the court of fact-finding, there is room to appropriately increase the amount of consolation money when calculating the amount of damages for delay at the time of closing of argument, taking into account the circumstance that

In addition, in order to re-calculated the principal of consolation money as at the time of closing arguments in fact-finding proceedings, the part concerning the principal of consolation money shall be reversed together in consideration of the above points.

3. Therefore, without further proceeding to decide on the remainder of the Defendant’s remaining grounds of appeal and the Plaintiffs’ grounds of appeal, the lower judgment as to the principal and damages for delay 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

Justices Cha Han-sung (Presiding Justice)