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

Korea

August 21, 2008

1. The defendant shall pay to the plaintiff 1 the amount of 41,66,67 won, 111, 111 won, 16, 3, and 4 respectively, and 5% per annum from October 13, 197 to September 18, 2008, and 20% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining claims are all dismissed.

3. Of the costs of lawsuit, 60% is assessed against the Plaintiffs, and the remainder is assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 1 19,438,870 won with 5% interest per annum from October 13, 197 to the service date of a copy of the complaint of this case and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or are recognized by comprehensively taking account of the following facts: Gap evidence 1, Gap evidence 2, 3's evidence 1 to 3, Gap evidence 8, 10, Gap evidence 11-1, 2, 4 through 26, Gap evidence 31 through 36, Gap evidence 13 through 15, Gap evidence 16, 17-1, 2, Gap evidence 18, 19, and non-party 3's testimony.

A. On April 1, 1975, Nonparty 2 (the date of January 31, 1940) was appointed as a civilian military employee belonging to the Army Transport Base in Jinhae, and served as an aircraft maintenance agent. Plaintiff 1 is his wife, Plaintiff 2, 3, and 4.

B. (1) On October 12, 197, Nonparty 2 went to work at a gaseous factory, Nonparty 4’s order, and inspected the aircraft inspector’s flight aircraft at the runway 0-1A (number 51-12474; hereinafter “instant flight aircraft”) with Nonparty 1. However, at the time, Nonparty 1, who was a civilian military employee of the military unit, went through the aircraft’s wife and Nonparty 5’s husband’s husband, was at the end of March, 197 and was at the end of 09:30,000, going to the north Limit Line without presenting the confirmation mark issued by the person responsible for fuel in charge, so that Nonparty 6, who was a fuel injection engine, can take off the above aircraft at the end of 15:0,000, and 1:5:00,000,000 won and 1:5:0,000 won and 2:0,000 won and 2:0,000 won and 1:5:0,00.

(2) On October 17, 105 of the same year, Nonparty 7, who had jurisdiction over the above military unit, was the commander of the 1005 Security Department, and in relation to the accident of this case, Nonparty 2 was on board the aircraft of this case, but did not stop the sudden takeoff of Nonparty 1, and deemed that Nonparty 2 was on the north of the Dong-dong.

C. Around October 4, 1981, the North Korean propaganda leaflets, in which Nonparty 1’s photograph was taken by North Korea, and Nonparty 1 and Nonparty 2 obtained the North Korean propaganda leaflets from North Korean authorities on July 19, 1982, respectively. Accordingly, the 39 team of the Army established an investigation into the violation of the former Public Law, the former National Security Act, and the Military Criminal Act against Nonparty 1 on November 3, 1984, and conducted an investigation into the violation of the Military Criminal Act against Nonparty 1 and Nonparty 2 on December 4, 1984, and conducted an investigation into the relation between Nonparty 1 and Nonparty 2 on September 8, 198, without having been aware of Nonparty 1’s relation to the North Korean aircraft, and reported Nonparty 1’s movement to Nonparty 1 and Nonparty 2 on May 8, 198, and did not stop his family activities after taking off the aircraft, and did not prosecute Nonparty 1’s family members.

D. Meanwhile, after the instant accident, the Plaintiffs had lost the highest and monthly rent of KRW 15,00,000 due to economic difficulties, such as lending one square room to North Korea, and around the world, Plaintiff 1 was known as the family members of North Korea, and Plaintiff 1 was able to live on the hump day without obtaining full-time workers. Plaintiff 2 supported the short-term staff in around 1993, but was supported by the document examination, but was deprived of the identity from the document examination, and was affected by the change of the position from the Sick to the driver’s disease.

E. (1) On August 23, 2005, the Plaintiffs reported the disappearance against Nonparty 2 and rendered a judgment of disappearance on April 20, 1983 at the Changwon District Court rendered a judgment of disappearance on the grounds of the expiration of the period of disappearance (2005J 31).

(2) After that, the Plaintiffs filed a civil petition with the National Ombudsman demanding to prove that Nonparty 2 was the person who was not the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person who was the person

(3) The Plaintiffs filed the instant lawsuit on November 22, 201 of the same year, while filing an application for compensation with the Committee for Deliberation on Compensation and Support for Victims of North Korea (amended by Act No. 8393, Apr. 27, 2007; hereinafter “the Compensation for Victims of North Korea”) following the conclusion of the agreement on military affairs, and received a decision to pay compensation of KRW 26,19,610 ( KRW 6,549,900 for each Plaintiff) against Nonparty 2, the abductees, on June 30, 2008.

2. Determination

A. Determination on the cause of the claim

(1) Occurrence of damages liability

As seen above, Nonparty 2 was accompanied by Nonparty 1, a civilian military employee belonging to the Defendant, for more than two hours from the time when Nonparty 1 took off the aircraft of this case to North Korea, while maintaining the aircraft in accordance with the instructions of the superior, and he was accompanied by Nonparty 2, a civilian military employee belonging to the Defendant, for more than two hours from the time of taking off the aircraft of this case, and the Defendant did not have any prior preparation for this case, and did not stop taking appropriate measures. Nonparty 1 did not take appropriate measures, taking into account the above flight distance, and Nonparty 1 was able to use fuel. In light of the fact that the fuel injectr did not have the confirmation mark of the person in charge, Nonparty 2 was believed to believe the fuel in his speech and injected it into North Korea due to the intention or negligence of the relevant public official, such as Nonparty 2, who is a public official belonging to the Defendant, and thus, the Defendant is liable to compensate the damages suffered by the Plaintiffs, who are Nonparty 2 and his family members due to the accident of this case.

(2) Scope of liability for damages

(A) Loss by day;

1) On the premise that Nonparty 2 had already died, the Plaintiffs asserted that, after their retirement age, Nonparty 2 suffered loss of daily wage from July 1, 1995 to January 30, 200, under the premise that he had already died.

2) The fact that the adjudication of disappearance was rendered against Nonparty 2 on April 20, 1983 due to the expiration of the period of disappearance on April 20, 1983 is as seen above. However, the adjudication of disappearance is only filed by interested parties, etc. for the purpose of confirming legal relations, such as inheritance relations, etc. with respect to the person whose life or death is unclear. Therefore, it cannot be readily concluded that the damage of lost income due to death was incurred immediately after the expiration of the period of disappearance. Even if Nonparty 2 was returned to North Korea, it cannot be deemed to lose his/her labor ability. According to the evidence evidence evidence No. 9, Nonparty 2 can be known that Nonparty 1 and Nonparty 2 were alive at the time of reporting that he/she was alive with Nonparty 1 in North Korea at around 1998, and there is no evidence to deem otherwise.

3) Therefore, this part of the plaintiffs' assertion is without merit.

(B) Consolation money

1) As seen above, Nonparty 2 and the Plaintiffs are clearly suffering from mental suffering due to the instant accident, in view of the fact that Nonparty 2 was sent back to North Korea against his will, thereby having a separate family and living together, and that it was confined to a political prison in North Korea, and the Plaintiffs were subject to surveillance on the ground that they were the most lost and economically high, and that they were subject to surveillance on the ground that they were the families of North Korean defectors, and they were at a disadvantage in terms of their status such as employment, etc., the Defendant is obligated to do so in cash.

2) Considering the above circumstances and all the circumstances revealed in the pleadings, including the fact that the Plaintiffs received KRW 26 million as compensation for damages under the relevant statutes, it is reasonable to pay KRW 50 million to Nonparty 2, KRW 25 million to Plaintiff 1, KRW 7 million to Plaintiff 2, and KRW 7 million to Plaintiff 3 and KRW 5 million to Plaintiff 4, respectively.

(C) Inheritance relationship

Nonparty 2’s damages amounting to KRW 50 million (= KRW 50 million x KRW 3/9, KRW 300) due to Nonparty 1’s declaration of disappearance on his or her or her or her or her or her or her or her or her or her or her damage amounting to KRW 11,111, KRW 111 for each of the other Plaintiffs (= KRW 50 million x KRW 2/9, KRW 209).

B. Judgment on the defendant's assertion

(1) The defendant's assertion

(A) Since the Plaintiffs received compensation, etc. pursuant to the Compensation Act, the instant claim constitutes double compensation prohibited under the proviso to Article 2(1) of the State Compensation Act, and in light of the purpose of enactment of the aforementioned Act, the victims of North Korea cannot file a claim based on the State Compensation Act.

(B) The instant lawsuit was filed after the lapse of three years from October 13, 1977, when Plaintiff 1 became aware of Nonparty 2’s deportation, and the extinctive prescription was completed.

(C) The occurrence of the instant accident conflicts with Nonparty 2’s negligence.

(2) Whether the case constitutes double compensation

(A) The purpose of the Act is to establish the Act on the Compensation for Victims of North Korea (Article 1). The Act provides that “The purpose of this Act is to secure the livelihood of the victims of damage related to North Korea after the conclusion of the Agreement on the Compensation for Victims of North Korea, or their bereaved family members, by compensating for and supporting the State, by providing the persons who suffered damage related to North Korea after the conclusion of the Agreement on the Compensation for Victims of North Korea, and by providing the necessary support for their resettlement to the Republic of Korea, thereby promoting their livelihood stability, recovering the pains arising from the division of North Korea, and contributing to the unity of the nation (Article 9).” In full view of these provisions, the above Act provides that the compensation for damage to the victims of North Korea shall be paid to the victims of North Korea (Article 9) regardless of any mistake on the part of the State in connection with North Korea. Accordingly, even if the Defendant committed an intentional or negligent act in connection with North Korea’s payment, it cannot be deemed that the victims cannot seek compensation for damage caused by such unlawful act.

(B) In addition, the proviso of Article 2(1) of the State Compensation Act provides that, “In the event a civilian military employee, etc. was killed in action, killed in action or on duty in connection with the performance of his/her duties, such as combat, training, etc., he/she or his/her bereaved family members shall not claim compensation for damages, such as disaster compensation, survivors’ pension, wounded veterans’ pension, etc., under the provisions of other Acts and subordinate statutes.” However, even if the defendant's tort committed by a public official on the part of his/her family members, it cannot be deemed that the damage compensation benefits paid pursuant to the Act on the Compensation for

(C) Therefore, the defendant's above assertion is without merit.

(3) Whether the extinctive prescription has expired

(A) The plaintiffs filed the lawsuit of this case on November 22, 2007 after about 30 years have elapsed since they became aware of the circumstances of the accident of this case.

(B) (1) The obligor’s exercise of the right of defense based on the extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principle of our Civil Act. Thus, in a case where the obligor made it impossible or considerably difficult for the obligee to exercise his right or to interrupt prescription before the completion of prescription, the obligor’s assertion of the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decisions 98Da42929, Dec. 7, 199; 2002Da32332, Oct. 25, 200

2) As seen earlier, Nonparty 2’s forced payment by Nonparty 1 and confirmed that fact through the investigation process by the Defendant’s investigative agency, as well as did not notify the Plaintiffs. Nonparty 2’s voluntary stay of prosecution on the ground of Nonparty 2’s criminal conduct in North Korea; and Nonparty 2’s relative to the Plaintiffs continuously monitor trends and put them at a disadvantage in employment, etc. If circumstances were to occur, it is practically impossible to claim damages for the Defendant’s mistake before the completion of prescription or take measures for interrupting prescription, even if the Plaintiffs were to have been forced to pay damages on the ground of the Defendant’s mistake before the completion of prescription, and thus, it is apparent that the Defendant’s assertion for the completion of the extinctive prescription of the new ginseng was an abuse of rights against the principle of trust and good faith (it is apparent that the Plaintiff’s assertion for the completion of the extinctive prescription has not been completed on July 207, which was recognized as the payer of Nonparty 2).

(C) Therefore, the defendant's above assertion is without merit.

(4) Non-party 2's negligence

(A) If Nonparty 2 took measures to prevent the monthly North Korea during flight as long as he was accompanied by the aircraft of this case, the fact of the fall, etc. may not be deemed to have any error in preventing the monthly North Korea itself, and there is no evidence to deem otherwise that there was any error in the occurrence of the accident of this case.

(B) Therefore, the defendant's above assertion is without merit.

C. Sub-decision

Therefore, the defendant combined his share of inheritance and has the obligation to pay to the plaintiff 1 41,66,67 won (16,66,67 won + 25 million won for inheritance), 18,11,111 won (1 won for inheritance + 7 million won) to the plaintiff 2, 3, and 4 respectively (16,111,111 won for inheritance + 5 million won for inheritance + 5 million won) and damages for delay from October 13, 1977 to September 18, 2008, 2008.

3. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judge Yong-Nam (Presiding Judge)