2014Da11062 Compensation for damages

1. A;

2. B

Korea

Busan High Court Decision 2013Na1044 decided January 9, 2014

October 29, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. 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. Therefore, in a case where an obligor had the right holder trust it after the completion of extinctive prescription, and where an obligee exercised his/her right within a considerable period of time that could expect the exercise of the right, the obligor’s assertion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith.

2. On March 30, 2010, the court below, citing the reasoning of the judgment of the court of first instance, found the following as victims of the suppression process in Daegu-Seoul-do, the 10th anniversary of the establishment of the Government of the Republic of Korea before the establishment of the Government of the Republic of Korea on August 15, 1948, based on the "the 10th 10th 10th 10th 10th 10th 10th 10th 10th 10th 200, the 55th 5th 5th 194 who was the applicant for truth-finding and the 10th 10th 10th 10th 2nd 10th 10th 10th 196 2nd 10th 196 2nd 10th 20 2nd 3th 196th 2nd 3th 2010.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In a case where the State received an application for ascertaining the truth of a victim, who is subject to the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”), or where the victim, etc. did not make an application for ascertaining the truth, the Criminal Procedure Commission, ex officio, may investigate ex officio the victim’s or his/her bereaved family members when it deems that there exists a reasonable ground to believe that the case constitutes a case to ascertain the truth, and that the truth is serious,” pursuant to Article 22(3) of the Act on the Settlement of History, if the State conducted an ex officio investigation pursuant to Article 22(3) of the Act and confirmed or presumed the victim as a victim, then the victim or his/her bereaved family members exercised their rights within a considerable period of time based on such determination, there may be special circumstances where the victim or his/her bereaved family members were aware that the State would not claim the extinguishment of rights due to the completion of extinctive prescription (see, e.g., Supreme Court en banc Decision 2012Da202819, May 16, 2013).

B. However, according to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed: (a) there was no request from the bereaved family to verify the truth against the deceased in this case; (b) the past history committee did not initiate an ex officio investigation; and (c) the record of the above findings of fact-finding; (d) the deceased was merely stated as the person who made a sacrifice for the Daegu 10-year Incident from the establishment of the government in 1948 to the Korean War; and (e) the facts not included in the text of the findings of fact-finding; and (c) other materials that could be deemed as having existed from the truth-finding process

In light of the aforementioned legal principles, it is insufficient to view that there is a special circumstance to acknowledge that the Defendant had had the Plaintiffs trusted on the fact that the Defendant would not assert the extinguishment of right by citing the completion of extinctive prescription. Therefore, it cannot be said that the Defendant’s filing of a defense against the claim of this case by the Plaintiffs against the claim of this case cannot be allowed against the principle of trust and good faith (see, e.g., Supreme Court Decisions 2013Da21662, Apr. 10, 2014; 2014Da208194, Sept. 4, 2014).

4. Nevertheless, the court below held that the defendant's defense of extinction of prescription constitutes an abuse of rights against the principle of good faith. Thus, the court below erred by misapprehending the legal principles as to the abuse of rights against the statute of limitations defense, which affected the conclusion of the judgment. The defendant's ground of appeal

5. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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.

Justices Kim In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Park Young-young

Justices Kim Jong-il