2013 Doz. 48459 Damage, Claim

1. A;

2. The party to the lawsuit in the deceased B;

(a) A;

4. C.

(c) D.

(d) E;

(e) F;

3. C

4. D;

5, E

6. F;

7. G.

8. H;

9.

10. J

11. K;

12. L.

13. M;

14.N

15.00

16. P;

Q. Q.

18, R

19. S (Before Opening: T;

20. U;

21. V

W 22, W

23, X

24. Y

25. Z;

26. AA (before opening names: AB);

27. AC

Korea

2014,4.2

April 30, 2014

1. Each of the plaintiffs' claims is dismissed. 2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff A 417,272,727 won, 473,684,210 won, the plaintiff H, I, J, K, L, N, andO respectively, KRW 265,789,473 won, the plaintiff P, Q, Q, R, S, and U respectively, KRW 220,00,000, KRW 300,000, KRW 300,000, KRW 366,666,666,666, and each of them shall be paid to the plaintiff Eul from the next day to the day of closing argument of the case, to the day of complete payment, the amount of KRW 265,789,473, KRW 175,789,789, and KRW 4730,00,000, KRW 2220,000, KRW 30,000, KRW 166,666,666, and each of this case.

1. Basic facts

A. Illegal confinement, investigation, and prosecution against the plaintiff A, etc.

(1) The plaintiff A around March 19, 1985, the network AD around March 19, 1985, the network AE around March 23, 1985, the network AE around April 20, 1985, and the police officers of the Busan Si-si Office and the Northbu Police Station. The network AF, like the above police officers on April 26, 1985, was engaged in a year without a warrant, and again was carried out on May 9, 1985, again on the day after they were released from April 26, 1985, and again were detained for an illegal investigation from the day of each of the above years to May 30, 1985 by the maximum of 23 days from May 30, 1985.

(2) The plaintiff Gap et al. was subject to violence and cruel acts by police officers during the process of being investigated in the M&A office in Busan City. On July 6, 1985, the prosecutor prosecuted the plaintiff et al. against the plaintiff et al. on the basis of the investigation at the police office on July 6, 1985 and filed a prosecution against the plaintiff et al. on the charge of violating the National Security Act.

B. Judgment of conviction and execution of sentence against the plaintiff A, etc.

(1) On November 27, 1985, Busan District Court sentenced the Plaintiff A and the deceased AD to each life imprisonment, five years of imprisonment, five years of suspension of qualification, four years of suspended execution, and two years of suspension of qualification, respectively.

(2) The plaintiff A, the network AD, the network AE, and the prosecutor appealed against the above judgment and filed an appeal with the Daegu High Court 86No101. On March 29, 1986, the Daegu High Court reversed the judgment of the court below against the plaintiff A, the network AD, and sentenced them to 15 years of imprisonment, suspension of qualifications, 15 years of suspension of qualifications, and dismissed the appeal filed by the plaintiff AE and the prosecutor, respectively.

(3) The plaintiff A, the net AD, the network AE, and the prosecutor were dissatisfied with this and filed an appeal with the Supreme Court Decision 86Do989, but the Supreme Court sentenced the dismissal of the appeal on July 8, 1987, and the above judgment of the court below became final and conclusive on the same day.

(4) The deceased AF released on November 27, 1985, which was the date of the first instance judgment, and the deceased AE released on January 6, 1989, and the plaintiff A and the deceased AD released on parole on August 15, 1995. The truth-finding decision by the Committee for the Settlement of History for Truth and Reconciliation.

(1) At the request of the Plaintiff P and W, the past History Mediation Committee for the Truth and Reconciliation (hereinafter referred to as the “Reconciliation Committee”) decided to commence the investigation of the alleged espionage of the Plaintiff, etc., and conducted the investigation.

(2) Around October 2009, the past History Commission rendered a truth-finding decision that “The suspicion of espionage against the Plaintiff, etc. is a violation of human rights where the police officers of the Woman District Police Station and the North Korean Police Station detained the Plaintiff, etc. without a warrant and forced the Plaintiff, etc. to make a statement through an adviser’s harsh treatment, and the prosecution prosecuted the Plaintiff, etc. to the same content and sentenced the Defendant to a heavy punishment, and it is necessary to take measures, such as reexamination, as prescribed by the Criminal Procedure Act.”

(d) Commencement decision of retrial and confirmation of new judgment.

(1) On June 25, 2010, Plaintiff G, the spouse of Plaintiff A and the deceased AD, filed a petition for a new trial with the Daegu High Court 86No101 on June 25, 2010, and the Daegu High Court decided to commence the new trial on September 3, 2010, and the said decision became final and conclusive as it is.

(2) On June 24, 2010, Plaintiff W, who is the child of Plaintiff P and net AF of the network AE, filed a petition for a new trial with the Busan District Court 85Kahap682 decided on November 8, 2010, and the Busan District Court decided to commence a new trial on November 8, 2010, and the said decision became final and conclusive as it is.

(3) On May 31, 2011, the Busan District Court rendered a not-guilty verdict on the MaE and the Mad AF in the above 2010 Inventory4 case, and the Prosecutor’s appeal was pending in the lawsuit with the Busan High Court 201Do351, the Daegu High Court 2010No-4 case with respect to the Plaintiff and the deceased AD was tried by combining the Busan High Court 201No351 case with the Busan High Court 201No351 case.

(4) On November 10, 2011, the Busan High Court rendered a judgment of innocence against the Plaintiff and the deceased AD in the above 2011No351, 2011 Jae-6 (Joint) case, and dismissed the prosecutor’s appeal on the case No. 2010 inventory 4. The prosecutor’s appeal was dismissed on May 24, 201, but the case was finalized on the same day.

E. Determination on criminal compensation

(1) On June 20, 2012, Plaintiff G et al. filed a claim for criminal compensation on June 20, 2012, and the Busan High Court rendered a decision to pay KRW 696,526,40 to Plaintiff A, and the Busan High Court rendered a decision to pay KRW 109,862,147, Plaintiff H, I, J, J, L, M, N, andO respectively (No. 2012coco7 of the Busan High Court, etc.) to Plaintiff G on August 21, 2012. The said decision became final and conclusive on September 14, 2012.

(2) On June 20, 2012, Plaintiff P, etc., the heir of the network AE, and Plaintiff V, etc. filed a claim for criminal compensation on June 20, 2012, and the Busan District Court rendered a decision to pay KRW 49,757,120 each to Plaintiff P, Q, R, S, and U, and KRW 7,437,920 to Plaintiff V, as well as KRW 7,437,920 to Plaintiff V, as well as KRW 4,958,613 each to Plaintiff W, X, Y, Z, AA, and AC (Dasan District Court 2012co2109). The said decision was finalized on February 22, 2013.

F. The relationship between the plaintiff A and the other plaintiffs

(1) The deceased’s spouse A died on December 6, 2013, and Plaintiff A’s children are Plaintiff C, D, E, and F.

(2) The spouse of the network AD is Plaintiff G, and Plaintiff H, I, J, K, K, L, M, N, and0 are children of the network AD.

(3) The children of the network AE are Plaintiff P, Q, R, S, and U.

(4) The spouse of the net AF is Plaintiff V, and the child of the net AF is Plaintiff W, X,Y, Z, AA, and AC.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap Nos. 1, 4 through 12 (including each number; hereinafter the same shall apply) and the purport of whole pleadings

2. Determination on the cause of the claim

A. According to the above basic facts, the police officers belonging to the defendant did not comply with due process stipulated in the Constitution of the Republic of Korea and the Criminal Procedure Act at the time of the arrest and detention of the plaintiff, etc., without a warrant issued by a judge, and detained the plaintiff Gap, etc. unlawfully by forcing the plaintiff, etc., and received false confessions by committing harsh acts while illegal confinement, and thereafter the prosecutor prosecuted the plaintiff, etc. based on the above confessions, based on the evidence submitted by the prosecutor. Accordingly, the court found the defendant guilty on the facts charged against the plaintiff, etc. and reported the sentence and executed imprisonment as a result.

B. The above series of public power of the defendant against the plaintiff Gap et al. is limited to the appearance of the execution of official duties, such as criminal investigation and punishment, and in substance, the defendant has a duty to protect the plaintiff et al., and constitutes a tort. Therefore, the defendant is obligated to pay to the plaintiffs the amount of money for mental damage suffered by the plaintiffs due to the defendant's tort, such as social cooling and social disadvantage, and inheritance share of the deceased's mental damage.

3. Judgment on the defendant's assertion

A. The parties' assertion

(1) The defendant's assertion

The plaintiffs filed a lawsuit of this case three years after the date on which they became aware of the damages and the perpetrator caused by the tort of this case, and five years after the date of the tort of this case, the plaintiffs' right to claim damages has expired before the lawsuit of this case is filed.

(2) The plaintiffs' assertion

The defendant's assertion of extinctive prescription constitutes abuse of rights, and the plaintiffs filed a lawsuit in this case within a reasonable period of time from the de facto disability that cannot be exercised.

B. Determination

(1) The claim for damages caused by tort against the State is extinguished by prescription if it is not exercised for three years (Article 766 of the Civil Code) from the date the injured party becomes aware of such damages and the perpetrator, or for five years from the date of the tort (Article 96 and Article 71 of the former Budget and Accounts Act before repealed by Act No. 8050 of Jan. 1, 2007) (Article 96 and Article 71 of the former Budget and Accounts Act before repealed by Act No. 4102 of Mar. 31, 1989). It is evident that the plaintiffs' lawsuit in this case was filed on Oct. 29, 2013 after five years from the date of the defendant's tort.

(2) Meanwhile, in a case where a public prosecution was instituted based on evidence, etc. collected by a State agency due to an illegal act in the course of investigation, and a judgment of conviction was rendered, but the existence of grounds for retrial became final and conclusive later, and a State agency’s claim damages against the State due to a State agency’s illegal act, etc., it shall be deemed that there was a de facto obstacle that the obligee could not expect the claim for damages until the judgment of innocence becomes final and conclusive in the retrial procedure. Accordingly, the defense of the completion of extinctive prescription by the State

However, barring any special circumstance, a creditor shall exercise his/her right within a period of six months equivalent to the suspension of prescription under the Civil Act from the date when the judgment of innocence became final and conclusive, and in principle, whether a claim for damages was filed within such period. However, in cases where the judgment of innocence becomes final and conclusive, prior to a claim for damages under the Civil Act, a creditor may first file a claim for criminal compensation under the Criminal Compensation and Restoration of Honor Act (hereinafter referred to as the "Criminal Compensation Act"), which can be said to be a more simple procedure, prior to the claim for damages under the Civil Act, and even if a creditor does not file a claim for damages within six months from the date when the judgment of innocence became final and conclusive, the "reasonable period of exercise of right to prevent the defense of extinctive prescription" can be deemed to have been extended. However, even in such cases, the period can be deemed to have exercised his/her right within a reasonable period of time when a claim for damages is filed within six months from the date on which the grounds for de facto disability in the exercise of rights became final and conclusive (see Supreme Court Decision 2013Da134.214.

(3) Based on the foregoing legal doctrine, the health department, Plaintiff A, and Dong DongD were acquitted on November 10, 201, and Busan High Court Decision 201No36, May 24, 2012, and the foregoing new judgment on new trial was confirmed on May 24, 2012.

The facts established, the deceased AE and the deceased AF were acquitted on May 31, 201 and the Busan District Court 2010 inventory 4, and the judgment was finalized on May 24, 2012, the plaintiff G, the heir of the deceased and the deceased AD, the deceased et al., the heir of the network AE, and the deceased et al., the deceased et al., the deceased et al., the deceased et al., the heir of the network AF filed a criminal compensation claim on June 20, 2012, within six months thereafter; the plaintiff et al. and the deceased et al., the heir of the deceased and the deceased AD received the criminal compensation decision on August 21, 2012 with the Busan High Court 2012, which became final and conclusive on September 14, 2012; the deceased et al., the deceased P et al., the heir of the network AE, and the deceased F, the deceased's heir of the deceased F.

(4) In light of these facts, the plaintiffs cannot be deemed to have exercised their rights within a reasonable period from the date when the decision of retrial and the decision of criminal compensation against the plaintiffs Gap, etc. became final and conclusive, and therefore it is reasonable to view that the plaintiffs' right to

(5) The plaintiffs asserted that the lawsuit in this case should be filed within a reasonable period from the date on which the decision on criminal compensation was made, considering the time spent to prepare for the lawsuit, such as the preparation of litigation costs and the confirmation of the claimed amount, but denying the validity of the statute of limitations based on the principle of trust and good faith should be limited to an exceptional limitation on the extinctive prescription system which takes the principle of the achievement of legal stability, the remedy for difficulties in proving evidence, and the sanction for neglect of the exercise of rights as its ideology. The grounds alleged by the plaintiffs are merely a relative and uncertain circumstance that cannot be objectively predicted, and it is difficult to view that there was any inevitable reason to delay the exercise of rights by the plaintiffs

(6) The defendant's defense of extinctive prescription is well-grounded, and there is no reason to reverse the plaintiffs' abuse of rights.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, Park Jong-dae

Judges Nam-man

Judges Dognaia