[1] 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 Movements is in violation of the Constitution” has binding force on the court (affirmative); and whether a circumstance where a decision of partial unconstitutionality was rendered prior to the said decision becomes a ground for retrial under Article 75(7) of the Constitutional Court Act regarding the judgment already finalized in the pertinent litigation that became the premise for the constitutional complaint prior to the said decision (affirmative

[2] In a case where the Korean History Settlement Commission established a truth-finding on the case under Articles 2(1)3 and 2(1)4 of the Framework Act on the Settlement of Truth and Reconciliation for Truth and Reconciliation, “the date when the victim and his/her bereaved family became aware of the occurrence of damage and of the perpetrator,” which is the starting point of the short-term extinctive prescription under Article 766(1) of the Civil Act for the claim for damages by the victim

[3] The case holding that in a case where the Korean History Settlement Commission, in the course of economic development of the new regime in the 1970s, committed a serious violation of human rights, such as obstructing the establishment and activities of the union and preventing the re-employment of executives and employees of the union Gap et al. and its members while preparing and managing the so-called "bluorial list," and that in a case where Gap et al sought State compensation, etc., the determination that the short-term statute of limitations under Article 766 (1) of the Civil Act was not completed, even if it is unclear whether the notice of the truth-finding was served on Gap et al.

[1] Article 75 (7) of the Constitutional Court Act provides that where a constitutional complaint under Article 68 (2) of the same Act is accepted, if a litigation case related to the relevant constitutional complaint is already finalized, a party may request a retrial.

Article 18(2) of the former Act on the Restoration of Honor of and Compensation 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 payment of compensation, etc. under this Act, the determination of payment of compensation, etc. under this Act shall be deemed to have been made by judicial compromise under the Civil Procedure Act for the damage incurred in relation to Democratization Movement.”

On August 30, 2018, the Constitutional Court rendered a decision that Article 18(2) of the former Democratization Compensation Act concerning mental damage caused by a tort is in violation of the Constitution (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba180, Aug. 30, 2018; hereinafter “Partial unconstitutionality Decision”).

As above, a partial decision of unconstitutionality is a decision that has the same result as the abolition of part of Article 18(2) of the former Democratization Compensation Act by declaring that the part of the "damage caused by a tort", which is a part of the "damage caused by a democratization movement, is unconstitutional and thus has the binding force on the court.

The circumstances in which a decision of partial unconstitutionality on a final and conclusive judgment in the relevant litigation case, which became the premise of a constitutional complaint before a partial decision of unconstitutionality is rendered, are grounds for retrial under Article 75(7) of the Constitutional Court

[2] In a case where the Korean History Settlement Commission established a truth-finding decision as to the “non-governmental collective sacrifice case” under Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation, and the “serious human rights infringement and manipulation suspicion case” under Article 2(1)4 of the same Act, the period of extinctive prescription under Article 766(1) of the Civil Act as to the right to claim damages by the victims and their bereaved families refers to the date on which the notice of truth-finding decision was served, rather than the date of truth-finding decision.

[3] The case holding that in a case where the Korean History Settlement Commission, in the course of economic development of the new regime in the 1970s, committed serious violation of human rights, such as obstructing the establishment and activities of the union and preventing the re-employment of executives and employees of the union Gap et al. and its members while preparing and managing the so-called "bluorial list", and Gap et al. sought state compensation, the court held that even if it is unclear whether the notice of the truth-finding decision was served on Gap et al., the lawsuit was filed at least within three years from the date of the above decision, and thus, the short-term statute of limitations under Article 766 (1) of the Civil Act was not completed

[1] Articles 68(2) and 75(7) of the Constitutional Court Act, Article 18(2) of the former Act on the Restoration of and Compensation to Persons Related to Democratization Movements (Amended by Act No. 13289, May 18, 2015) / [2] Article 766(1) of the Civil Act, Articles 2(1)3 and 4, 26, and 28 of the Framework Act on the Settlement of History for Truth and Reconciliation / [3] Article 766(1) of the Civil Act, Articles 2(1)3 and 4, 26, and 28 of the Framework Act on the Settlement of History for Truth and Reconciliation

[1] Supreme Court Decision 2019Da249589 Decided October 29, 2020 (Gong2020Ha, 2259), Constitutional Court Decision 2014Hun-Ba180, 304, 305, 2015Hun-Ba13, 283, 284, 357, 434, 435, 436, 437, 441, 442, 2016Hun-Ba23, 464, 67, 67, 73, 98, 215, 244, 308, 375, 375, 2017Hun-Ba258, 205, 206Hun-Ba296, 205, 206, 2025, 206, 2016

Plaintiff (Re-Appellant) 1 and 7 others (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Korea (Government Law Firm Corporation, Attorneys Kim Young-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2019Na2036118 decided December 18, 2019

All appeals are dismissed. The costs of appeal are assessed against Defendant (Re-Defendant).

The grounds of appeal are examined.

The First Ground for Appeal

A. Article 75(7) of the Constitutional Court Act provides that where a constitutional complaint under Article 68(2) of the same Act is accepted, if the litigation case related to the relevant constitutional complaint becomes final and conclusive, the parties may request a retrial.

Article 18(2) of the former Act on the Honor Restoration and Compensation, etc. of 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 the payment of compensation, etc. under this Act shall be deemed to have been made by judicial compromise under the Civil Procedure Act for the damage incurred 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 Act on the Compensation for Democratization Movement is in violation of the Constitution (see, e.g., Constitutional Court en banc Order 2014Hun-Ba180, Aug. 30, 2018; hereinafter “instant decision of partial unconstitutionality”).

The decision of partial unconstitutionality of the instant case is a decision that has the same effect as the abolition of part of Article 18(2) of the former Democratization Compensation Act by declaring that the part of the “damage caused by a tort”, which is a part of the “damage inflicted in relation to a democratization movement, is unconstitutional and thus becomes binding upon the court.

The circumstances in which the decision of partial unconstitutionality of the instant case was rendered prior to the pronouncement of a decision of partial unconstitutionality prior to the instant decision of partial unconstitutionality are grounds for retrial under Article 75(7) of the Constitutional Court Act (see Supreme Court Decision 2019Da249589, Oct. 29, 2020).

B. In the lawsuit of the first instance court, which was based on the premise of the instant constitutional complaint filed by the Plaintiff (hereinafter “Plaintiff”), the lower court rendered a judgment dismissing the lawsuit of this case seeking consolation money for mental damage suffered by the Plaintiffs in relation to democratization movements by applying the part that lost its effect as a decision of partial unconstitutionality under Article 18(2) of the former Democratization Compensation Act, and thus became final and conclusive, the judgment subject to a retrial was rendered. Therefore, the instant judgment subject to a retrial was the pertinent litigation that became the premise of the said constitutional complaint, and determined that there was a ground for retrial under Article 75(7)

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the grounds for a retrial under Article 75(7) of the Constitutional Court

2. Regarding ground of appeal No. 2

A. In a case where the Korean History Settlement Commission for the Truth and Reconciliation (hereinafter “The Korean Committee”) conducted a truth-finding determination with respect to “the case of collective sacrifice against the private sector” under Article 2(1)3 of the Framework Act on the Settlement of History for the Truth and Reconciliation,” and “the case of suspicion of serious human rights violations and manipulation,” under Article 2(1)4 of the same Act, “the date on which the victim and his/her bereaved family members become aware of the occurrence of damage and the perpetrator” in relation to the short-term extinctive prescription under Article 766(1) of the Civil Act as to the right to claim damages by the victim and his/her bereaved family members is not the date of truth-finding determination, but the date on which the notice of truth-finding determination was served (see, e.g., Supreme Court Decisions 2019Da220526, Mar. 26, 2020; 2018Da2

B. According to the reasoning of the lower judgment and the record, the Plaintiffs were forced to engage in old-age activities on December 12, 1980 and were dismissed, and the Plaintiffs’ personal information and place of work were stated in the so-called “○○○○○” list discovered from the process of ○○○○ (hereinafter referred to as the “○○○○”)’s strike on August 1987. On June 30, 2010, the Criminal Procedure Commission rendered a truth-finding decision that “a State agency obstructs the establishment and activities of old-age in the course of the economic development of the new regime in the 1970s, and there was a serious violation of human rights, such as preventing the re-employment of the labor union executives and members, committed during the preparation and management of the so-called “bable list” (hereinafter referred to as the “fact-finding decision”). The instant lawsuit was filed on June 18, 2013.

C. Therefore, even if it is unclear whether the notice of truth-finding decision of this case was served on the plaintiffs, it is clear that the lawsuit of this case was filed at least within three years from the date of the decision. Thus, the short-term extinctive prescription under Article 766(1) of the Civil Act against the plaintiffs' claim is not completed

Although the lower court’s reasoning partially inappropriate, it is justifiable to have rejected the Defendant’s defense of extinctive prescription. In so doing, it did not err by misapprehending the legal doctrine on extinctive prescription, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Kim H-soo (Presiding Justice)