[1] In a case where a person who received a final and conclusive judgment of conviction based on evidence collected by an investigation agency by an illegal act, etc. files a claim against the State for damages, whether the State’s defense of extinctive prescription is allowed as an abuse of rights (negative), and the considerable period of time for the creditor to exercise its right to prevent the State’s defense

[2] General factors in calculating consolation money due to a tort / In exceptional cases where damages for delay in the obligation to compensate for consolation money due to a tort shall be calculated from the date of closing argument in fact-finding proceedings, whether the principal of consolation money can be calculated in consideration of the circumstances delaying compensation (affirmative), and in cases of tort committed by public officials due to a violation of human rights, matters to be considered

[1] Articles 2, 179, 766(1) of the Civil Act, Articles 2(1) and 8 of the State Compensation Act / [2] Articles 393, 751, 763 of the Civil Act, Articles 2(1) and 8 of the State Compensation Act

[1] Supreme Court Decision 2013Da201844 Decided December 12, 2013 (Gong2014Sang, 170) / [2] Supreme Court Decision 2010Da1234 Decided January 27, 2011

Plaintiff 1 and 8 others (Law Firm Gyeongsung, Attorneys Inn Jin-hun et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Choi financial et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na2002021 decided July 25, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the extinctive prescription

A. In a case where a public prosecution was instituted on the basis of evidence, etc. collected by a State agency due to an illegal act, etc. during the investigation process, and a final judgment of conviction was rendered, but the existence of grounds for retrial was revealed later and the judgment of innocence became final and conclusive in the retrial procedure, and the State claims damages against the State due to an illegal act, etc. of the State agency, it shall be deemed that the obligee was de facto

Therefore, in such a case, the defense of the completion of the extinctive prescription by the State, which is the debtor, cannot be allowed as an abuse of rights against the principle of good faith. However, barring any special circumstance, the creditor shall exercise his/her right within the “reasonable period” from the date when the judgment of innocence became final and conclusive, and within the six-month period equivalent to the suspension of prescription under the Civil Act, and even if the creditor did not file a claim for damages within six months from the date when the judgment of innocence became final and conclusive, where the creditor filed a claim for damages under the Criminal Compensation Act, the “reasonable period” of the exercise of the right to prevent the defense of the extinctive prescription may be deemed to have been extended, and in such a case, the claim for damages shall be deemed to have been exercised within a considerable period of time (see Supreme Court Decision 2013Da201844, Dec. 12, 201

B. According to the reasoning of the judgment of the court of first instance and the records cited by the court below, ① Nonparty 1, 2, 1, and 7 were arrested and detained by an investigator belonging to the former Central Information Department on August 14, 1980, and led to confession of Nonparty 1. ② Based on such confession, Nonparty 1 escaped from North Korea on October 25, 1980 to South Korea on the ground that the court of first instance was found not guilty on the ground that the court of second instance was found not guilty on the ground that the defendant was found not guilty on the ground that the court of second instance was found not guilty on the ground that the defendant was found guilty on the ground that he/she was found not guilty on the ground that the court of second instance was found guilty on the ground that he/she was found not guilty on the ground that the court of second instance and the court of second instance were found not guilty on the ground that the court of second instance on February 25, 1982, which became final and conclusive on the ground that the defendant 1 was not admissible.

Examining such factual relations in light of the legal principles as seen earlier, it can be deemed that there was an objective disability that the Plaintiffs could not expect to exercise the right to claim damages of this case against the Defendant until February 24, 2011, which became final and conclusive. Since Plaintiff 1 et al. filed a claim for criminal compensation under the Criminal Compensation Act within six months from the date on which the ground for such disability became final and conclusive and the Plaintiffs filed the lawsuit of this case within six months from the date on which the judgment on criminal compensation became final and conclusive, the Plaintiffs were able to exercise their right within a considerable period of time that could prevent the Defendant from protesting the statute

Although some of the reasoning of the judgment below on this part is insufficient, the court below rejected the defendant's defense of extinctive prescription by deeming it to constitute an abuse of rights against the principle of good faith. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles

2. As to consolation money

In calculating consolation money due to a tort, considering the victim's age, occupation, social status, property and living conditions, degree of suffering from damage, degree of negligence of the victim, etc. as well as the victim's intentional or negligent act, motive and cause of the harmful act, and the perpetrator's attitude after the illegal act, together with the circumstances on the part of the perpetrator, also conform to the principle of fair liability for damages. The court may determine the amount of consolation money at its own discretion, taking into account such various circumstances into account. Meanwhile, in exceptional cases where damages for delay of compensation liability due to a tort should be calculated from the date of the conclusion of arguments in fact-finding proceedings, it is necessary to calculate the principal amount of consolation money at the time of the conclusion of arguments in fact-finding proceedings, taking due account of the circumstances where damages for delay should be calculated from the date of the conclusion of arguments in fact-finding proceedings, and the degree of illegality of the tort committed by the public officials as in this case, the content and period of suffering suffered by the victim and his family members, and the necessity for preventing and preventing recurrence of similar cases, etc. (see Supreme Court Decision 20120Da17Da1274.).

In light of the above legal principles, the reasoning of the judgment below, and the records, the amount of consolation money of this case recognized by the court below cannot be deemed to have been excessive to the extent that it deviates from the limits of discretion held by the fact-finding court against the principle of equity. Furthermore, the court below did not err in the misapprehension of legal principles as alleged in the ground of

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)