In a case where a lawsuit is filed for a claim for damages that had already died and his/her heir as a joint plaintiff at the time of filing the lawsuit, whether the heir, as well as his/her own own right to claim damages of the deceased party, may be deemed to have exercised both his/her right to

In a case where a lawsuit for damages is brought by a deceased party and an heir who is indicated as a joint plaintiff at the time of filing the lawsuit, the part of the lawsuit already brought in the name of the deceased party shall be dismissed, and it cannot be deemed that the heir has exercised his/her right as well as his/her own own right to claim damages of the deceased party.

Articles 3, 750, 751, and 752 of the Civil Act; Articles 51 and 249(1) of the Civil Procedure Act

Supreme Court Order 79Ma173 dated July 24, 1979 (Gong1979, 12152)

See Attached List of Plaintiffs (Law Firm Young-soo, Attorneys Kim Jin-young et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2013Na2027006 decided January 28, 2015

1. Of the part against the Defendant in the lower judgment, each part of the lower judgment ordering payment of KRW 28,00,000 per annum from September 12, 2013 to October 31, 2013, and KRW 5% per annum from September 31, 2013, and KRW 20% per annum from the following day to the date of full payment, is reversed, and that part of the case is remanded to the Seoul High Court.

2. The defendant's remaining appeals against plaintiffs 98, 99, 100, and 101 and the remaining appeals against the plaintiffs are dismissed.

3. The costs of appeal between the Plaintiffs and the Defendant except for Plaintiffs 98, 99, 100, and 101 are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the recognition of the sacrifice of the victims of this case

In light of the relevant legal principles and records, the lower court was justifiable to have determined that the victims of this case constitute victims of the so-called case of sacrificeing civilians on the ground of the circumstances indicated in its holding. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on

2. As to the ground of appeal on extinctive prescription

(1) In a case where the State conducted a truth-finding investigation that confirms or presumes as a victim by receiving an application for ascertaining the truth of the victim who is subject to the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”), it is reasonable to deem that there are special circumstances where the victim exercises his/her right within a reasonable period of time based on such determination that there is a trust in the State at least would not assert the lapse of the statute of limitations. Nevertheless, the State’s assertion for the completion of the statute of limitations constitutes an abuse of rights against the principle of trust and good faith, barring any special circumstance, the term “reasonable period” should be limited in a short period of time equivalent to the suspension of prescription under the Civil Act, but it may be extended by up to three years if there are special circumstances in each individual case (see Supreme Court en banc Decision 2012Da202819, May 16, 2013).

In addition, even if there was no request from the victim to verify the truth, in a case where the Criminal Procedure Commission established ex officio an investigation pursuant to Article 22(3) of the Criminal Procedure Act and confirmed or presumed as a victim by finding the truth that there was a serious reason to believe that the case constitutes a case to verify the truth, it may ex officio investigate the case. In light of the legislative purpose of the Criminal Procedure Reorganization Act and the contents of the above provision, it shall be deemed that the damage and restoration of honor of the victim must be done, and the intention of the State under the Criminal Procedure Act should be taken into consideration in light of the importance of the case, and that the victim’s damage and restoration of honor should be accepted. Since there was no reason to treat differently from the case where the truth-finding decision was made by the request to verify the truth in terms of granting trust to the victim, it is reasonable to deem that the State’s assertion of extinctive prescription as to the victims or their bereaved family members constitutes abuse of rights (see Supreme Court Decision 2013Da1602, Jul. 25, 2013).

(2) Meanwhile, since the victim’s right to consolation money and his/her own right to consolation money due to a victim’s mental damage, such as his/her spouse, etc. under Article 752 of the Civil Act, are separate, determination of whether the statute of limitations expires should also be made at the time when the victim exercises his/her right (see Supreme Court Decision 2013Da200568, Aug. 22, 2013).

(3) In addition, in a case where a lawsuit for damages is brought by the deceased party and his heir, which is indicated as a joint plaintiff at the time of filing the lawsuit, the part of the lawsuit already brought in the name of the deceased party is illegal and dismissed (see Supreme Court Order 79Ma173, Jul. 24, 1979). Such a lawsuit cannot be deemed to have been brought to have exercised the right as well as his own own right to claim damages of the deceased party as well as his/her share of inheritance to the deceased party.

(4) The reasoning of the lower judgment and the record reveal the following facts.

① On October 6, 2009, the Korean History Settlement Commission established under the Korean History Settlement Commission established under the Korean History Settlement Act, upon request of 36 persons who sacrificed the instant case, or ex officio, determined that they constitute victims of the so-called civilian sacrifice in the Korean War.

② After that, the Plaintiffs, the bereaved family members of the instant victims, filed a lawsuit seeking compensation for damages against the Defendant on January 13, 2012, which was three years after the date of the truth-finding decision, on which the Defendant did not take any affirmative measures, despite that the Defendant could have anticipated the withdrawal of appropriate measures for restoring the deceased’s honor and compensating for damages through the legislation, following the provisions of the Act on the Settlement of History and the recommendation of the Committee on the Settlement of History.

③ The deceased non-party 2, the deceased non-party 1’s spouse of the deceased non-party 1, and the deceased non-party 2, the deceased non-party 1, the deceased non-party 1, the deceased non-party 2, and the deceased non-party 101 (hereinafter “Plaintiff 98 et al.”) claimed consolation money as his spouse, and the deceased non-party 2, the deceased non-party 1, the deceased non-party 1’s consolation money and the deceased non-party 1’s children inherited from the deceased non-party 1 respectively.

④ On October 31, 2013, the first instance court rendered a judgment in favor of each of the Plaintiffs and the Defendant, including the deceased Nonparty 2 and the 98 et al., that ordered the Defendant to pay the consolation money of KRW 40 million as his spouse, and KRW 28 million as the Plaintiff et al. (the deceased Nonparty 1’s consolation money of KRW 20 million and KRW 8 million, respectively, as his children, inherited from the deceased Nonparty 1) and damages for delay. The lower court appealed against this judgment.

⑤ However, on April 25, 1996, before the instant lawsuit was filed, the deceased Nonparty 2 died on April 25, 1996. On March 25, 2014, four (4) persons, including Plaintiff 98, etc., who revealed the same fact during the process of the lower judgment, were requested to resume the lawsuit against the deceased Nonparty 2, but were dismissed.

④ On April 30, 2014, Plaintiff 98 and four others submitted an application for amendment of the purport of the claim on April 30, 2014, which was three years from the date of the determination of the truth-finding process of the instant case, and they additionally added KRW 10 million to their claim amount (hereinafter “the instant additional claim”).

7) Accordingly, the court below dismissed the deceased non-party 2's lawsuit, while recognizing that four persons including the plaintiff 98 et al. succeeded to the deceased non-party 2's consolation money, and sentenced the defendant to four persons including the plaintiff 98 et al. in part of the judgment of the court of first instance that changed the judgment to pay consolation money of 38 million won (the deceased non-party 1's consolation money of 20 million won and 8 million won inherited from the deceased non-party 1 each as his children and the deceased non-party 2 inherited from the deceased non-party 2) and damages for delay.

(5) Examining these facts in light of the legal principles as seen earlier, as to the damages claim portion and the remaining damages claim portion by the Plaintiffs, including the Plaintiff 98 et al., excluding the instant additional claims, the Defendant granted the same trust that the Defendant did not invoke the benefit of extinctive prescription by making a truth-finding decision, and the Plaintiffs filed a lawsuit claiming damages of this case within a reasonable period from the date of the truth-finding decision, and therefore, the Defendant’s assertion on the completion of extinctive prescription as to the damages claim by the Plaintiffs constitutes an abuse of rights against the principle

However, the deceased non-party 2's claim of consolation money should be judged separately from the deceased non-party 1's claim of consolation money or the deceased non-party 98's claim of consolation money, which is separate from the deceased non-party 2's claim of consolation money or the deceased non-party 98's claim of consolation money. However, at the time of the lawsuit of this case, the plaintiff non-party 2 and four of the deceased non-party 98, who are their heirs, filed a lawsuit of this case with the deceased non-party 2's claim of consolation money and four of the deceased non-party 2 and the deceased non-party 98, etc., respectively, but the part which was brought under the deceased non-party 2's name shall be dismissed as it is unlawful, and the plaintiff 98 and four of the deceased non-party 2 cannot be viewed as exercising their right to claim consolation money as part of the deceased non-party 2's claim of this case after the lapse of three years from the truth-finding decision of this case.

(6) Therefore, the judgment of the court below that rejected the Defendant’s defense of extinctive prescription against the part on the claim for damages by 4 others including the Plaintiff 98 and the remaining part on the claim for damages by the Plaintiffs is justifiable, and there is no error of law by misapprehending the legal principles on the defense of extinctive prescription. On the other hand, the court below rejected the Defendant’s defense of extinctive prescription against the part on

3. As to the ground of appeal on the computation of consolation money

In light of the relevant legal principles and records, the amount of consolation money recognized by the court below cannot be deemed as significantly contrary to the principle of equity. Thus, the court below did not err in exceeding the limits of discretion of the fact-finding court as to the calculation of consolation money

4. Conclusion

Therefore, among the part against the Defendant in the lower judgment, the part of the lower judgment ordering four plaintiffs, etc. to pay 28,000,000 won per annum from September 12, 2013 to October 31, 2013, and 20% per annum from the next day to the day of full payment, each of which part of the case is reversed, and remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal against four plaintiffs, etc., including 98, and the appeal against the remaining plaintiffs are dismissed, and the costs of appeal between the plaintiffs and the defendant except 4 others, including 98, are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee Sang-hoon (Presiding Justice)