[1] Whether Article 166(1) and Article 766(2) of the Civil Act that applies to cases where “the provisions of Article 2(1)3 (a) and Article 2(1)4 (a) of the Framework Act on the Settlement of Truth and Reconciliation for Truth and Reconciliation are unconstitutional,” which the Constitutional Court rendered on August 30, 2018, apply to cases where a lawsuit seeking compensation for damages incurred due to a public official’s unlawful performance of duties in cases falling under subparagraphs 3 and 4 above, is pending in the court until the time when the decision of unconstitutionality is made (affirmative), and whether the extinctive prescription under Article 766(2) of the Civil Act or Article 96(2) of the National Finance Act applies to the above right to claim compensation for damages (negative)

[2] Elements to be taken into account in assessing consolation money due to a tort

[3] In a case where there is a significant change in the monetary value after the lapse of a long period between the time of tort and the time of the closing of argument, whether damages for delay of compensation obligation due to tort shall be deemed to have occurred from the date of closing of argument at the fact-finding court, which is the basis for calculating consolation money (affirmative), and in this case, whether it is necessary to calculate consolation money in consideration of the circumstance where the principal amount of consolation money is delayed at the time of closing of argument at the fact-finding court (affirmative)

[4] Whether a decision made by the Constitutional Court on August 30, 2018 (hereinafter “the part concerning mental damage caused by a tort among the damage incurred in relation to a democratization movement under Article 18(2) of the former Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement is in violation of the Constitution” has binding force on the court (affirmative); and whether the effect of the decision made as unconstitutional extends to cases where a request for adjudication on the unconstitutionality of Article 18(2) of the former Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movement was made (affirmative)

[1] On August 30, 2018, the Constitutional Court rendered a decision that Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation (hereinafter “The Act”) and Article 2(1)4 of the same Act that applies to “the suspicion of serious human rights violations and manipulation” in Article 2(1)3 of the same Act shall be unconstitutional. Such decision of unconstitutionality extends to cases where a lawsuit claiming compensation for damages caused by a public official’s unlawful performance of duties is pending in the court until the time of the decision of unconstitutionality. Accordingly, the statute of limitations under Article 766(2) of the Civil Act or Article 96(2) of the National Finance Act (wholly amended by Act No. 1981, Apr. 1, 198) shall not apply to such claim for compensation for damages where the statute of limitations under Article 2(1)3 of the previous Act or Article 2(1)4 of the former Budget and Accounts Act (wholly amended by Act No. 1981, Apr. 1, 20197).

[2] In calculating consolation money due to a tort, consideration of the victim's circumstances, such as 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 attitude of the perpetrator after the tort, together with the circumstances of the perpetrator, is consistent with the principle of fair liability for damages. The court may determine the amount of consolation money at its own discretion, taking into account these various circumstances into account.

[3] When a considerable change occurs in comparison with the time of tort, such as the monetary value at the time of the conclusion of arguments to be considered when a long-term period has elapsed between the time of tort and the time of the conclusion of arguments, damages for delay of compensation liability due to tort shall be exceptionally deemed to have occurred from the date of the conclusion of arguments at the fact-finding court, which is the basis for calculating consolation money. In exceptional cases where damages for delay of compensation liability due to tort should be deemed to have occurred from the date of the conclusion of arguments at the fact-finding court, it is necessary to calculate consolation money as at the time

Meanwhile, in the judgment of the court of first instance, the consolation money was calculated on the basis of the date of the closing of argument in the court of first instance, taking into account the aforementioned circumstances where the compensation was delayed, and the appellate court did not calculate the consolation money again as of the date of closing of argument in the court of first instance and maintained the amount of consolation money in the judgment of the court of first instance

[4] Article 18(2) of the former Act on the Restoration of Honor of and Compensation to Persons Related to Democratization Movement (amended by Act No. 13289, May 18, 2015; hereinafter “former Democratization Compensation Act”) provides that “If the applicant consents to the determination of the payment of compensation, etc. under this Act, the determination of compensation, etc. under this Act shall be deemed to have been made pursuant to the Civil Procedure Act for the damage suffered in relation to the Democratization Movement.”

On August 30, 2018, the Constitutional Court rendered a decision that the part concerning mental damage caused by a tort among “damage arising in relation to a democratization movement” under Article 18(2) of the former Act on the Compensation for Democratization Movement is unconstitutional. As above, the decision loses its effect by declaring the part concerning “mental damage caused by a tort,” which is a pro rata part of “damage arising in relation to a democratization movement,” as unconstitutional and has the binding force on the court as a decision of partial unconstitutionality that leads to the same result as the abolition of a part of Article 18(2) of the former Act on the Compensation for Democratization. Such decision of unconstitutionality has a binding force on the court before the decision of unconstitutionality is made.

[1] Articles 2(1) and 8 of the State Compensation Act; Articles 166(1) and 766(2) of the Civil Act; Article 71(2) of the former Budget and Accounts Act (wholly amended by Act No. 4102, Mar. 31, 1989); Article 2(1)3 and 4 of the Framework Act on the Settlement of History for Truth and Reconciliation / [2] Articles 393, 751, and 763 of the Civil Act / [3] Articles 393, 751, and 763 of the Civil Act / [4] Articles 41 and 47 of the Constitutional Court Act; Article 71(2) of the former Budget and Accounts Act (wholly amended by Act No. 13289, May 18, 2015)

[1] Supreme Court Decision 2018Hun-Ba23686 Decided November 14, 2019 (Gong2020Sang), 2014Hun-Ba148, 162, 219, 465Hun-Ba50, 440, 2014Hun-Ba2223, 290, 206Hun-Ba419 (Hun-Ba263, 1394) / [2] 2063, 205, 206Hun-Ba4168, 205, 205, 304, 205, 205, 364, 205, 206, 305, 294, 206, 305, 294, 305, 206, 294, 305, 2019

Plaintiff 1 and one other (Law Firm Beneficiary, Attorneys Seo Jung-hee et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm LLC, Attorneys Kim J-jin, Counsel for defendant-appellant)

Seoul High Court Decision 2019Na2016862 decided September 18, 2019

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion on tort liability (Ground of appeal No. 1)

The court below held that, although the plaintiffs were arrested and detained for committing the crime of violation of Emergency Decree No. 9 and were convicted of conviction, the court below held that the plaintiffs and related persons were liable for tort liability against the defendant for mental damage suffered by the plaintiffs due to their return, etc., on the ground that there was a State agency's illegal act, including illegal arrest, detention, harsh treatment, and coercion of false statements during the investigation process, and that there was no proof of criminal facts, even though there was no proof of criminal facts.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine regarding the establishment of State tort liability

2. As to the assertion on extinctive prescription (Ground of appeal No. 2)

A. On August 30, 2018, the Constitutional Court rendered a decision that Article 166(1) and Article 766(2) of the Civil Act provides for “a group sacrifice case of a private person” under Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation and that Article 2(1)4 of the same Act provides for “a serious violation of the Constitution” (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, Aug. 30, 2018) and that Article 2(1)3 of the same Act provides for “a serious violation of the Constitution” (see, e.g., Supreme Court Decision 2014Hun-Ba148, Aug. 30, 2018). Such decision of unconstitutionality does not extend to a case where a lawsuit seeking compensation for damages incurred by a public official’s unlawful performance of duties under Article 2(1)3 and 766(2)4 of the same Act is pending the judgment of extinctive prescription under Article 2016(36(1) of the former Budget Act.

B. Examining the reasoning of the lower court regarding the Defendant’s liability for damages in light of the record, the Plaintiffs’ claim for damages in this case constitutes the State’s claim for damages caused by public officials’ unlawful performance of duties in the suspicion of serious infringement of human rights as referred to in Article 2(1)4 of the previous Bankruptcy Adjustment Act, and the Plaintiffs’ lawsuit was pending in the court prior to rendering a decision of the Constitutional Court 2014HunBa148, etc., and thus, Article 766(2) of the Civil Act or Article 71(2) of the former Budget and Accounts Act does not apply to the Plaintiffs’ claim for damages. Therefore, the Plaintiffs’ claim for damages can only apply the short

However, according to the reasoning of the lower judgment and the record, the lower court’s judgment and the record revealed that the Plaintiffs were convicted of committing an offense in violation of Emergency Decree No. 9, which occurred during the investigation process, and that the judgment of innocence against the Plaintiffs was finalized on August 2013 upon the Plaintiffs’ request for a review of conviction. In light of the foregoing, the Plaintiffs can be deemed to have recognized the facts constituting tort only after the judgment of innocence became final and conclusive in the retrial, and it is apparent in the record that the Plaintiffs filed the instant lawsuit within three years thereafter, and thus, the short-term extinctive prescription regarding the Plaintiffs’ claim was not completed.

The lower court’s conclusion that did not accept the Defendant’s defense of extinctive prescription is that it did not exhaust all necessary deliberations beyond the bounds of the principle of free evaluation of evidence, or that it did not err by misapprehending the legal doctrine on ex

3. As to the calculation of consolation money and damages for delay (Ground of appeal No. 3)

A. In calculating consolation money due to a tort, taking into account the circumstances on the part of the victim, including 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 circumstances on the part of the perpetrator, including the perpetrator's intentional and negligent act, motive and cause of the harmful act, and attitude of the perpetrator after the tort, along with the principle of fair liability for damages. The court may determine the amount of consolation money at its own discretion by taking into account these various circumstances (see, e.g., Supreme Court Decisions 98Da41377, Apr. 23, 199; 2007Da7149, Dec. 24, 2009).

In the event that a considerable change occurs in comparison with the time of tort in monetary value, etc. at the time of the conclusion of arguments at the time of the conclusion of arguments at the time of the tort and the time of the conclusion of arguments at the time of the conclusion of arguments at the court of fact-finding, damages for delay of the compensation obligation due to tort shall be deemed to have occurred from the date of the conclusion of arguments at the court of fact-finding, which is the basis for calculating the compensation amount. In exceptional cases where damages for delay of the compensation obligation due to tort should be deemed to have occurred from the date of the conclusion of arguments at fact-finding, the principal should be calculated at the time of the conclusion of arguments at the time of the conclusion of arguments at the court of fact-finding, taking due account of

Meanwhile, the court of first instance calculated consolation money based on the date of the closing of argument in the court of first instance, taking into account the circumstance where the compensation was delayed as above, and where the appellate court did not calculate consolation money as of the date of closing of argument in the court of first instance and maintained the amount of consolation money in the court of first instance as it is, then the delay damages on the compensation obligation will occur from the date of closing of argument in the court of first instance, which is the basic date of calculating consolation money (see Supreme Court Decision 2013Da2

B. The first instance court, taking into account the various circumstances as indicated in its reasoning, determined that consolation money is calculated as of the date of the closing of argument in the first instance trial and that such damages for delay occurred from the date of the closing of argument in the first instance trial. The lower court upheld the first instance judgment. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by exceeding the bounds of discretion of the fact-finding court in calculating consolation money, or by failing

4. As to the assertion on the benefit of a lawsuit (Ground of appeal No. 4)

A. Article 18(2) of the former Act on the Restoration of Honor and Compensation, etc. to Persons Related to Democratization Movements (amended by Act No. 13289, May 18, 2015; hereinafter “former Democratization Compensation Act”) provides that “If an applicant consents to the determination of the payment of compensation, etc. under this Act, the determination of compensation, etc. under this Act shall be deemed to have been made in accordance with the Civil Procedure Act for the damage suffered in relation to democratization movements.”

On August 30, 2018, the Constitutional Court rendered a decision that the part concerning mental damage caused by a tort among “damage arising in relation to democratization movements” under Article 18(2) of the former Democratization Compensation Act is unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba180, Aug. 30, 2018). The said decision, supra, declared that “mental damage caused by a tort,” among “damage arising in relation to democratization movements,” which is a pro rata part, is unconstitutional, has lost its effect and has the binding force on the court as a partial decision of unconstitutionality that partly abolished Article 18(2) of the former Democratization Compensation Act (see, e.g., Supreme Court Decision 2019Da249589, Oct. 29, 2020). Before such decision of unconstitutionality becomes effective, the Constitutional Court rendered a decision of unconstitutionality as to whether Article 18(2) of the former Democratization Compensation Act was unconstitutional or not.

B. The lower court determined that even if the Plaintiffs consented to a decision to pay compensation, etc. under the former Democratization Compensation Act and received compensation, etc., it cannot be deemed that a judicial compromise has been formed pursuant to Article 18(2) of the former Democratization Compensation Act even with respect to consolation money, which is mental damage, and rejected the Defendant’s main defense of safety without legal interest.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine regarding the benefit of a lawsuit and the effect of unconstitutionality decision, or by failing to exhaust all necessary deliberations, thereby affecting the conclusion

5. Conclusion

The Defendant’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)