[1] In a case where an obligor had a right holder trusted the obligor’s trust after the completion of the extinctive prescription and exercised his/her right within a reasonable period that could have been expected to exercise the right thereafter, whether the claim for the completion of the extinctive prescription is permissible (negative) and the standard for determining whether the obligor had exercised his/her right within a reasonable period and the scope of “reasonable period” in a case involving a claim for damages arising from unlawful acts

[2] Whether the statute of limitations for the victim's right to claim consolation money and the bereaved family's right to claim consolation money unique to the bereaved family, such as the spouse, should be separately determined (affirmative)

[3] In a case where Gap et al. filed a lawsuit against the State against the State against Eul et al. claiming consolation money before three years have elapsed since the date of the truth-finding decision with respect to the deceased et al. under the Framework Act on the Settlement of History for Truth and Reconciliation, and sought consolation money with the purport of claiming consolation money after three years have passed since the date of the truth-finding decision, the case holding that the State's defense of extinctive prescription as to consolation money Eul et al does not constitute

[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 principles of the Civil Act. Thus, if an obligor had a right holder trusted it after the completion of extinctive prescription, and has exercised the right within a considerable period of time that could expect the exercise of the right thereafter, the claim for the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith. In such a case, whether there was an exercise of right within a reasonable period of time should be determined by comprehensively taking into account the relationship between the obligee and the obligor, the content, motive, and circumstances leading up to the obligor’s act given trust, the purpose and genuine intent of the obligor to achieve the obligor’s exercise of right, and whether there were special circumstances where the obligor had to delay the obligee’s exercise of right. Therefore, denying the completion of extinctive prescription on the ground of the principle of good faith should be limited to an exceptional limitation on the system where the obligor did not exercise the right within a limited period of time under the Civil Act.

[2] Since the victim's right to consolation money due to a tort of life infringement and the bereaved family's right to consolation money due to mental damage such as the spouse under Article 752 of the Civil Code is separate, it shall be determined as of the time when the statute of limitations expires.

[3] In a case where Gap et al. filed a lawsuit against the State against the State of Gap et al. seeking consolation money before three years have elapsed since the date of the truth-finding decision, under the Framework Act on the Settlement of History for Truth and Reconciliation, and Eul et al. sought consolation money with the deceased's spouse et al. by modifying the purport of the lawsuit, etc. three years have passed since the date of the truth-finding decision, the case holding that the statute of limitations defense by the State against Eul et al. does not constitute abuse of rights against the principle of good faith since the time of the lawsuit against the deceased et al. was within a reasonable period of time from the date of truth-finding decision as to consolation money for the deceased et al., and the statute of limitations defense against Eul et al. does not constitute abuse of rights against the principle of good faith

[1] Articles 2, 162, and 766(1) of the Civil Act / [2] Articles 751 and 752 of the Civil Act / [3] Articles 2, 751, 752, and 766(1) of the Civil Act; Articles 2(1) and 8 of the State Compensation Act; Article 32 of the former Accounting Act (repealed by Article 82 of the Financial Act, Act No. 217, Sept. 24, 1951); Article 26 of the Framework Act on the Settlement of Former History for Truth and Reconciliation

[1] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077)

Plaintiff 1 and fourteen others (Law Firm 21st century General Law Office, Attorneys Kim Jong-tae et al., Counsel for the plaintiff-appellant)

Korea

Gwangju High Court Decision 2012Na5338 decided December 20, 2012

Of the part against the defendant in the judgment below, the part against the plaintiff 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 concerning the part ordering the payment of consolation money unique to the deceased non-party 1, 2, and 3's spouse, parents, and children, and the part against the plaintiff 14, and 15 are reversed, and this part of the case is remanded to the Gwangju High Court. The defendant's remaining appeals against the plaintiff 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, and 13 are all dismissed.

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 principles of the Civil Act. Therefore, if an obligor had a right holder trusted it after the completion of extinctive prescription, and has exercised the right within a considerable period of time that could expect the exercise of the right thereafter, claiming the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith. Whether there was an exercise of right within a reasonable period of time should be determined by comprehensively taking into account the relationship between the obligee and the obligor; the content, motive and circumstance leading up to the obligor’s act given trust; the purpose and genuine intent of the obligor to achieve the obligee’s exercise of right; and whether there were special circumstances where the obligor had no choice but to delay the obligee’s exercise of right. Therefore, denying the completion of extinctive prescription on the ground of the principle of good faith should be limited to an exceptional limitation on the system where the obligor did not exercise the right within a limited period of 20 years under the Civil Act. Therefore, it should be deemed that the period of extinctive prescription should be extended by 163.

B. Unless there is any limitation on the method of implementation while the State re-examines the historical facts prior to several hundreds of years through the enactment of the Framework Act on the Settlement of History for Truth and Reconciliation and declares the withdrawal of measures to recover damage to the victims and their bereaved family members, it shall be deemed that the victim et al. made a declaration that the victim would ultimately accept the method of judicial relief seeking damages by the method of a claim for state compensation, barring any special circumstance, and the legal meaning derived therefrom shall be deemed to have expressed the purport that the victim would not refuse compensation by asserting new extinctive prescription in a specific litigation case.

Therefore, if the State received an application to verify the truth of a victim who is subject to the application of the Act on the Settlement of History, and conducted a truth-finding decision that confirmed or presumed as a victim by the Committee for the Settlement of History for Truth and Reconciliation under the Defendant (hereinafter “Settlement Committee”), and based on such decision, exercised the right within a considerable period of time, it is reasonable to deem that there are special circumstances to have a trust in the Defendant at least that the Defendant would not assert the extinguishment of the right on the ground of the expiration of the statute of limitations. Thus, the State’s assertion for the completion of the statute of limitations against the victim, etc. constitutes an abuse of rights against the principle of trust and good faith (see Supreme Court en banc Decision 2012Da202

C. Meanwhile, since the victim's right to consolation money due to the tort of life infringement and the right to consolation money unique to the bereaved family's mental damage such as the spouse under Article 752 of the Civil Code is separate, it shall be determined as of the time when the statute of limitations expires.

D. According to the reasoning of the judgment below and the records, ① the deceased non-party 1, 2, 3, and 4 (hereinafter “the deceased”) were requested to verify the truth after the past reorganization law was enforced, and the court below confirmed or presumed the deceased as victims of Gwangju case on November 25, 208. ② The plaintiffs, the bereaved family members of the above deceased, were not able to expect the defendant to withdraw the deceased’s restoration and compensation through legislation. However, the defendant did not take any affirmative measures against the non-party 1, the deceased's inherent claim for consolation money against the non-party 4, the non-party 1, the non-party 1, the non-party 4, the non-party 1, and the non-party 4, the non-party 1, the non-party 5, the non-party 1, the deceased's spouse, and the deceased's inherent claim for consolation money against the non-party 1, the non-party 4, the non-party 1, the deceased's mother and the deceased's children were not claimed.

Examining these facts in light of the legal principles as seen earlier, the claim for consolation money and the claim for consolation money for the deceased’s spouse, parents, and children, which were later added by the complaint of this case, should be determined separately as to whether the statute of limitations expires. As to consolation money for the deceased Nonparty 1, 2, and 3, the point at which the suit of this case was filed is within a considerable period from the date of the truth-finding decision of this case, the Defendant’s defense of extinctive prescription cannot be allowed as it constitutes an abuse of rights against the principle of good faith. However, regarding consolation money unique to the deceased’s spouse, parents, and children, it cannot be deemed that the Plaintiffs exercised their rights within a considerable period from the date of fact-finding decision of this case. Accordingly, the Defendant’s defense of extinctive prescription

E. Therefore, the judgment of the court below which rejected the defendant's defense of extinctive prescription against the plaintiff 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 (hereinafter "the plaintiff 1 et al.") on consolation money of the deceased non-party 1, 2, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 on consolation money of the deceased non-party 1, 2, and 3 is justifiable in its conclusion. There is no error of law by misapprehending the legal principles as to the abuse of rights of the deceased's spouse, parents, and children, or by failing to

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 by taking into account various circumstances, but it does not mean that the judge's arbitrary discretion is allowed to calculate consolation money, so it does not mean that the calculation of consolation money must be limited to the amount that can be consistent with the general legal sentiment, and it goes beyond its limit, and it goes beyond the bounds of the discretion of the fact-finding court to calculate consolation money significantly contrary to the ideology of fair and equitable allocation of damages and the principle of equity. In addition, the Korean War following the truth-finding decision under the Act on the Settlement of History and History, was 60 years have passed since the time of the occurrence of the damage, and the Act on the Settlement of History and History was also aimed at the uniform recovery of the damage, and there are special circumstances, such as the number of victims, as well as the number of victims, and there is a need to adjust the amount of consolation money by the number of bereaved family members claiming compensation (see Supreme Court en banc Decision 2012Da20819, supra).

In light of the above legal principles, although multiple similar cases have already been determined, it is somewhat inappropriate for the court below to recognize the deceased non-party 1, 2, and 3's amount of consolation money by applying a considerable increased standard without disclosing other circumstances that could vary in the amount of consolation money in this case. However, considering the reasoning of the judgment below in light of the records, the amount of consolation money recognized by the court below is not deemed to be considerably contrary to the principle of equity, and there is no violation of law of deviating from the limits of discretion of the

3. Conclusion

Therefore, among the part against the defendant in the judgment below, the part against the plaintiff 1 et al. ordering the payment of consolation money unique to the deceased non-party 1, 2, and 3's spouse, parents, and children's children and the part against the plaintiff 14, and 15 are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals against the plaintiff 1 et al. are dismissed. It is so

Justices Kim Chang-suk (Presiding Justice)