Plaintiff 1 and three others (Attorneys Hwang Yong-Gyeong et al., Counsel for the plaintiff-appellant)

Korea

February 25, 2009

Changwon District Court Decision 2007Gahap8358 Decided September 18, 2008

1. Revocation of the part against the defendant in the judgment of the court of first instance, and the plaintiffs' claims corresponding to the revoked part are dismissed.

2. All incidental appeals by the plaintiffs are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiff 1 19,438,870 won per annum from October 13, 1977 to the service date of a copy of the complaint of this case and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The text of paragraph (1) is as follows.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiffs corresponding to the money for which payment is sought following shall be revoked. The defendant shall pay to the plaintiffs 1 1 15,00,000, and 10,000,000 won each for the plaintiffs 2, 3, and 4 and 5% per annum from October 13, 197 to September 18, 2008 and 20% per annum from the next day to the date of full payment.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiffs sought the payment of passive damages and consolation money to the Defendant, and the first instance court dismissed the claim for passive damages among them, and partly accepted the claim for consolation money. Accordingly, the Defendant appealed against this, and the Plaintiffs appealed only to the claim for consolation money, and thus, the scope of the judgment of this court is limited to the portion of consolation money.

2. Facts of recognition;

The court's reasoning on this part is as follows: "The plaintiff reported the disappearance against the non-party 2, and on August 23, 2005, at the Changwon District Court on April 20, 1983, the adjudication of disappearance was rendered on April 20, 1983 (2005-Ma31)." " At the plaintiff's request, the adjudication of disappearance was made on April 20, 1983 with the non-party 2 on April 20, 1983 (the Changwon District Court Decision 2005Ra31) and the adjudication of disappearance was made on August 23, 2005, and it became final and conclusive on August 23, 2005." This part is just as stated in Article 420 of the Civil Procedure Act. Thus, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. The defendant's liability for damages occurs

The same shall apply to the statement between 4 and 13 of the five pages of the judgment of the first instance.

4. Judgment on the defendant's defense of extinctive prescription

A. The defendant's assertion

Even if the defendant's tort liability is recognized, the plaintiffs could have exercised their right to claim damages against the defendant on October 13, 197 by identifying the damage and the perpetrator. Since the lawsuit of this case was filed only on November 22, 2007 after the expiration of the statute of limitations, the plaintiffs' right to claim damages against the defendant was extinguished by the statute of limitations.

B. Whether the statute of limitations has expired

(1) Extinctive prescription period

A) The Plaintiffs’ claim for damages is divided into the Plaintiffs’ own damage claim (hereinafter “the claim for damages”) and Nonparty 2’s damage claim against the Defendant (hereinafter “the claim for inheritance”). In any way, the right to claim damages against the State arising from tort under the former part of Article 2(1) of the State Compensation Act, which is ① the right to claim damages against the State for monetary payment. As such, Article 71(2) and (1) of the former Budget and Accounts Act (amended by Act No. 4102 of Mar. 31, 1989), the right to claim damages is applicable, and if it is not exercised for five years from the date of tort (hereinafter “the long-term statute of limitations”) and Article 766(1) of the State Compensation Act are applicable. Thus, the short-term statute of limitations under Article 8 of the State Compensation Act is expired even if the victim or his legal representative becomes aware of the damage and the perpetrator (hereinafter “short-term statute of limitations”).

B) In addition, "the day on which a long-term statute of limitations begins" means the day on which the result of damage occurred, not the day of the harmful act, but the day on which the result of the damage occurred actually. However, if the result of the damage is actual, the statute of limitations proceeds from the time when it can be deemed that the damage was actually caused by the harmful act regardless of whether the victim knew or could have anticipated the occurrence of the damage (see, e.g., Supreme Court Decision 2004Da71881, May 13, 2005).

C) Meanwhile, according to the purport of the defendant's assertion, that "the plaintiff was able to claim damages against the defendant on October 13, 197 and the identity of the perpetrator, but the extinctive prescription has been completed because it was not exercised," it is clear that the defendant claimed the short-term prescription period on October 14, 197 (the first day of October 13, 1977 in principle of non-taxation under Article 157 of the Civil Act, and the next day should be deemed as the starting day of the defendant's assertion), and its assertion includes the long-term prescription period. Further, it is merely a mere legal assertion about how the extinctive prescription period becomes effective, and it is not subject to the principle of pleading, and the court may determine ex officio, since the defendant's assertion on how the period of extinctive prescription has become effective as of November 10, 2006, which constitutes the base date of extinctive prescription period under Article 157 of the Civil Act (see, e.g., Supreme Court Decision 2005Da168179, etc.).

(2) Whether the extinctive prescription of its own bonds has expired

① According to the facts found above, since Non-party 2's payment on October 12, 197 by Non-party 1, who is a civilian military employee belonging to the same military unit, during the performance of his duties, resulted in actual damage by Non-party 1, who is a civilian military employee belonging to the same military unit, the starting date of the long-term prescription period as "the day he committed an illegal act". The long-term prescription period was completed on October 14, 1982, when calculated as of October 14, 197, which is the starting date of the defendant's assertion, and the whole arguments were stated in the above evidence No. 11-6, 15, and 16. The plaintiff 1 did not know that Non-party 1 was the legal representative of Non-party 1, who was the victim of Non-party 1's domestic life at the time of the inspection of Non-party 1's non-party 1's non-party 2's non-party 1's non-party 1'.

With respect to short-term prescription, the plaintiffs asserted that the non-party 2 did not recognize that the accident of this case was caused by the non-party 1's illegal act since it was not discovered that the non-party 1 was paid to the non-party 2 before July 25, 2007 by the Minister of Unification, and that the plaintiffs did not recognize that the accident of this case was caused by the non-party 1's illegal act. As to the initial date of the short-term prescription period, "the non-party 2" under Article 766 (1) of the Civil Act means that the damage and the perpetrator have real and specific awareness, and it is not sufficient to confirm that the harmful act was caused by the illegal act (see Supreme Court Decision 95Da3228, Nov. 10, 195, etc.). It is also difficult to find that the non-party 2 was aware of the facts that it was caused by the non-party 1's non-party 2's illegal act, and it is also necessary to establish a new relationship with the plaintiff 17.

(3) Whether the extinctive prescription of inheritance claims expires

(A) Nonparty 2, as the victim himself, who was sent to North Korea by Nonparty 1, who is a civilian military employee belonging to the same military unit during the performance of his duties, was aware of the damage and the perpetrator on October 12, 197, which is the date of tort. Thus, the period of short-term prescription or long-term prescription shall all be the starting point. However, when calculating as of October 14, 197, which is the starting point of the Defendant’s assertion, the short-term prescription on October 14, 1980, and the long-term prescription on October 14, 1982, respectively completed. However, considering the North Korea’s living in North Korea due to payment, and the situation of inter-Korean replacement, it is practically impossible for the Plaintiffs to withdraw the statute of limitations within each of the above periods, such as where Nonparty 2, the right holder, to whom the statute of limitations has expired, to whom the statute of limitations has expired cannot be applied within 1,000 or within 2,000.

(B) Meanwhile, the extinctive prescription does not expire within six months from the time of the inheritor’s confirmation (Article 181 of the Civil Act). The determination of an inheritor here includes not only cases where the existence or whereabouts of an inheritor or where the inheritor is unknown, but also cases where the effect of inheritance becomes final and conclusive by the approval of inheritance as well as cases where the inheritor’s approval of inheritance becomes final and conclusive by the approval of inheritance. Accordingly, after the adjudication on adjudication of disappearance against Nonparty 2 becomes final and conclusive, the Plaintiffs’ simple approval becomes final and conclusive, and the effect of inheritance becomes final and conclusive by November 23, 2005). The extinctive prescription does not expire within six months from May 22, 2006, which became final and conclusive by the lapse of such period.

(4) The theory of lawsuit

As such, until May 23, 2006, the long-term and short-term prescription period of inherent claims and inheritance claims has expired, and the lawsuit in this case was filed on November 22, 2007 thereafter, and thus, barring any special circumstance, it shall be deemed that all of its inherent claims and inheritance claims have expired by prescription.

C. Judgment on the plaintiffs' assertion

(1) Determination on the assertion on the initial date of extinctive prescription

First, around July 25, 2007, the plaintiffs asserted that the period of extinctive prescription should be calculated from July 25, 2007, because the non-party 2 and the plaintiffs could not exercise their rights against the defendant until being notified by the Minister of Unification of the contents that the non-party 2 is recognized as the payer of the right to North Korea, and thus, the period of extinctive prescription should be calculated from the point of view of July 25, 2007. Thus, the plaintiff's assertion that the period of extinctive prescription should not run from the point of time when the right arises objectively and is able to exercise its rights and is not possible to exercise its rights. However, in this context, the "non-exercise of rights" refers to the case where there is a cause of legal disability, for example, the non-party 2's lack of legal knowledge or legal knowledge, or there is no debtor's absence, etc. (see Supreme Court Decisions 2002Da56031, Dec. 10, 2002; 2006Da3816.

(2) Judgment on abuse of rights assertion

(A) The plaintiffs' assertion

After Nonparty 2’s voluntary deposit under Nonparty 1, the investigative agency to which the Defendant belongs, after investigating Nonparty 2’s suspicion of Nonparty 2’s North Korea, the Defendant gave advisory advice to Nonparty 2, in addition to investigating Plaintiff 1 by force over several times, and did not notify the Plaintiffs despite Nonparty 2’s confirmation through the investigation process. However, Nonparty 2’s non-party 2’s non-party 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 2’s non-indicted 3’s non-indicted 3’s non-indicted 3’s non-indicted 2’s non-indicted.

(B) Determination

1) The obligor’s exercise of the right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. As such, ① an obligor has become unable or significantly difficult to exercise the obligee’s right or the interruption of prescription prior to the expiration of the statute of limitations, ② an obligee has become unable to exercise the right or acted to believe such a measure is unnecessary (hereinafter referred to as circumstances 1), ② an obligee has objectively obstructed the obligee’s exercise of the right (hereinafter referred to as the circumstances 2), ③ the obligor has made the right holder trust, or made the obligee do not use the statute of limitations after the expiration of the statute of limitations (hereinafter referred to as the “third circumstances”), ④ need to protect creditors, ④ there are such special circumstances as the receipt of the performance of the obligation by other creditors, etc., and thus, the obligor’s refusal of the statute of limitations may not be allowed as abuse of rights against the principle of good faith and good faith, and thus, the obligor’s specific application of the statute of limitations should not be recognized as abuse of rights.

2) In this case, comprehensively taking account of the facts cited in the judgment of the first instance court as above, evidence Nos. 4, and evidence Nos. 11-1 to 44, the court below determined that the defendant-affiliated security unit did not voluntarily leave North Korea due to the result of the investigation of the North Korean accident conducted after the accident of this case, but did not stop Nonparty 1's sudden take-off. After the inspection of the flight aircraft of this case, it was judged that the defendant-affiliated security unit was north Korea since it was impossible for Nonparty 1 and Nonparty 2 to escape from North Korea due to the non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 1'.

First of all, even if the facts of this case are based on ① the above facts, the defendant's investigation conducted after the accident of this case was conducted, and determined that the non-party 1 was returned to North Korea by the non-party 1, not the non-party 2's voluntary North Korea as a result of the investigation conducted after the accident of this case. After that investigation, the non-party 2 was treated as the non-party 1's North Korea North Korea and used in the publicity of South Korea, and the non-party 1 was suspended from prosecution without preventing the non-party 1's North Korea from exercising his right to claim compensation for damages, unless the defendant actively fabricated facts or confirmed the non-party 2's North Korea payment and concealed it, it cannot be deemed that the defendant committed an act of preventing or making it difficult for the plaintiff 2 to exercise his right to claim compensation for damages, and it cannot be deemed that the change of the plaintiffs' assignment of the plaintiffs' right to claim compensation for damages to the non-party 2 was an act of excessive pressure or abuse of public authority.

Next, in relation to the second situation, even if the plaintiffs were to observe the trend from the defendant, and in the case of the plaintiffs 2, the plaintiffs were refused to enter the short-term staff officer due to their personal identity issues, and were on the part of the soldiers, and were treated disadvantageously due to changes in their assignment, etc., the plaintiffs did not exercise their right to claim damages against the defendant, it cannot be said that the plaintiffs immediately caused the "obsive disability that the creditors cannot exercise their rights" on the grounds of the subjective concern of such plaintiffs. In order to have such a disability, there are reasonable grounds for concern, and it is difficult to find that the third parties other than the plaintiffs were practically unable to exercise their rights even before the plaintiffs' positions. The plaintiffs did not submit any statistical data on how the defendant responded to the above situation, and the National Ombudsman's response to the above problems is difficult to recognize that there was a reason to request the National Ombudsman's response to the defendant's complaint by the National Ombudsman and the National Ombudsman's response to the defendant's complaint.

In addition, the facts acknowledged earlier or the plaintiffs' assertion that ① in the case of inheritance claims, from August 23, 2005, when the plaintiffs were able to exercise their rights as inheritors of non-party 2, until May 23, 2006, there was no circumstance that the defendant's defense of extinctive prescription has been abused, and ② in the case of inherent claims, even if the circumstance where the defendant's defense of extinctive prescription has been continued until a certain period of time, such circumstance was resolved in the late 1990s, even if the defendant's defense of extinctive prescription was made by abuse of rights, it cannot be rejected as an abuse of rights even if the creditor's defense of extinctive prescription was not exercised even until the expiration of the original period of extinctive prescription, even if the debtor's defense of extinctive prescription was not exercised again until the expiration of the original period of extinctive prescription (the debtor's assertion of extinctive prescription becomes an abuse of rights, and even in this case, it cannot be viewed that the defendant's defense of extinctive prescription has not been established.

Finally, there are no other circumstances to regard the defendant's defense of extinctive prescription as an abuse of right.

3) Ultimately, in the instant case, the Defendant’s assertion of the completion of extinctive prescription cannot be deemed as an abuse of rights against the principle of good faith.

5. Conclusion

Therefore, all of the plaintiffs' claims for consolation money against the defendant are dismissed without merit. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, it shall be accepted by the defendant's appeal and it shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed, and all of the plaintiffs' incidental appeals shall be dismissed as they are without merit. It is so decided as per Disposition

Judges Park Jae-young (Presiding Judge)

1) An inheritor may grant a simple acceptance, a qualified acceptance, or a renunciation within three months from the date on which he/she becomes aware of the commencement of inheritance (Article 1019(1)). As such, an inheritor is deemed to have granted a simple approval only after the lapse of the above period without confirming the effect of inheritance and without giving a qualified acceptance or a renunciation within the above period (Article 1026 subparag. 2 of the Civil Act). Meanwhile, an adjudication on adjudication of disappearance becomes final and conclusive (Articles 40 and 43(1) of the Family Litigation Act, Article 57 of the Family Litigation Act, and Article 483(1) of the Family Litigation Act). However, in this case, an inheritor is deemed to have been deceased on the date of expiration of the statutory period of expiration of the inheritance, and the inheritance commenced at that time (Article 28 of the Civil Act). Accordingly, the Plaintiffs, as the inheritor, were aware of the commencement of inheritance on August 23, 2005, and there were no simple approval or renunciation by the inheritor.