In a case where a procedure of objection or correction is provided for in a trial, whether a person who did not seek correction may obtain a remedy for infringement of rights by the State’s compensation (negative in principle)

Article 2 (1) of the State Compensation Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant-appellee)

[Judgment of the court below]

Korea

Daegu High Court Decision 2013Na20619 decided May 27, 2014

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

The grounds of appeal are examined.

1. Where a procedure of objection or correction is provided for in a trial, a person who fails to seek correction due to a cause attributable to a judge or other public official, or to seek such correction, shall not, in principle, be entitled to remedy for infringement of rights by the State’s compensation unless there are extenuating circumstances that make it impossible to seek such correction (see Supreme Court Decision 9Da24218 delivered on July 11, 2003).

2. The court below should interpret the language stated on the ground of the decision to revoke the execution of this case to the effect that the Plaintiff’s deposit insurance policy and deposit equivalent to the Plaintiff’s claim amount and the deposit insurance policy equivalent to the amount of the claim, and the deposit insurance policy equivalent to the execution cost were submitted. The judge in charge of the auction of this case also mispercing the security provided for the decision to suspend execution as a guarantee for the revocation of the execution procedure, and issued a decision to revoke the execution of this case with only the amount of the claim and the execution cost provided by the Young-si Fisheries Cooperatives. On the ground that the court discovered that there was a lack of guarantee for the decision to revoke the execution of this case, prior to the decision to revoke the execution of this case, the court below determined that there was a special circumstance in which the Plaintiff could not file an immediate appeal against the decision to revoke the execution of this case.

3. However, in light of the following circumstances known by the facts acknowledged by the court below, it is difficult to accept the above judgment of the court below.

A. The reason for the decision to revoke the execution of this case is as follows: “The Nonparty submitted a deposit guaranty insurance policy and a deposit certificate equivalent to the amount claimed by the Plaintiff in order to apply for the revocation of the auction procedure for the auction procedure at Daegu District Court, Daegu District Court, 2007, 2080, and submitted the deposit guaranty insurance policy corresponding to the claim and the execution cost of the Young-si Fisheries Cooperatives, which is a collateral security right, as it received an order to suspend the auction procedure and submitted it as a deposit guaranty insurance policy corresponding to the deposit and execution cost.” Thus, even according to the text, it is revealed that the Plaintiff’s deposit guaranty insurance and deposit certificate equivalent to the amount claimed by the applicant were provided as security for the suspension of execution

B. In light of the fact that both the insured and the deposited guaranty insurance policy submitted at the time of the decision to suspend execution of the instant case are the Plaintiff, the Plaintiff was more well aware of the fact that the deposit guaranty insurance policy and the deposit document were not additionally submitted prior to the decision to revoke execution of the instant case, but are the security already submitted at the time of the decision to suspend execution of the instant case.

C. If the Plaintiff did not provide a guarantee under the Civil Execution Act, and thereby suffered any disadvantage or loss, an immediate appeal may be filed pursuant to Article 17(1) of the Civil Execution Act, and the judge in charge of the auction of this case tried to liquidate the deposit guaranty insurance policy submitted at the time of the decision to suspend execution of this case and distribute it to the court at the time of the decision to revoke execution of this case is after the lapse of the period for filing an immediate appeal against the decision to revoke execution of this case, and there is no circumstance to consider whether there is any special circumstance in which the Plaintiff

4. Examining the aforementioned facts in light of the legal principles as seen earlier, even though a person who suffered disadvantage or damage as a result of a decision to revoke execution is expected to recover his right or interest by an immediate appeal, the Plaintiff did not seek such correction, and there is no inevitable circumstance that the Plaintiff was unable to seek correction due to a cause attributable to a judge or other public officials, or that it was impossible to seek such correction. Nevertheless, the lower court erred by misapprehending the legal principles on State liability due to a judgment, which affected the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)