Plaintiff 1 and three others (Attorney Jeong-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Kim Chang-hee, Counsel for defendant-appellant)

March 16, 2017

Seoul Western District Court Decision 2016Da2348 Decided June 17, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to plaintiffs 1 and 2 11,435,09 won, plaintiffs 3, and 4 73,730,337 won, respectively, and 5% interest per annum from September 12, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Quotation of the first instance judgment

Pursuant to the main sentence of Article 420 of the Civil Procedure Act, the reasoning of the judgment of the court of first instance shall be cited on the ground of this judgment.

2. Judgment on the defendant's assertion

A. The assertion

The defendant asserts that since the plaintiff 3 et al., who is the deceased non-party 1's bereaved family member (hereinafter "the deceased") received KRW 52,545,380 from the defendant on December 29, 2015 in accordance with the procedures prescribed by the Crime Victim Protection Act, the defendant's claim that the above amount should be deducted from the amount of damage claim of this case by the plaintiffs.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

According to the results of the inquiry into the Seoul Western District Prosecutors' Office and the purport of the whole pleadings, the following facts can be recognized.

① As the deceased’s children, the Plaintiff 3 and the Plaintiff 4 constitute the senior bereaved family under Articles 18(1)1 and (3) and 17(2) of the Crime Victim Protection Act.

② On November 2, 2015, Plaintiff 1 applied for the bereaved family relief fund following the death of the deceased on behalf of Plaintiff 3 and Plaintiff 4, a child of the deceased.

③ The Plaintiff 1 did not institute the instant lawsuit as the State’s claim until the time of the above application. As such, the State indicated that it would not receive the State’s compensation due to the death of the deceased. Moreover, at the time of the above application, the Plaintiff 1 attached a written confirmation to the effect that “In the event that the State receives benefits, etc. under the State Compensation Act or other Acts and subordinate statutes after receiving relief funds, the State may recover pursuant to Article 30(1)3 of the Crime Victim Protection Act and actively cooperate.”

④ On December 2, 2015, a District Council decided to pay KRW 52,545,380 of the bereaved family relief fund prescribed in Article 22, etc. of the Enforcement Decree of the Crime Victim Protection Act to Plaintiff 3 and Plaintiff 4 as Seoul Western District Prosecutor’s Office 2015-Gu Office 11, and paid the above amount to Plaintiff 3 and Plaintiff 4 by means of remitting it to the account in the name of Plaintiff 1, an application account.

⑤ On January 27, 2016, the Plaintiffs filed a claim for damages of this case against the Defendant, claiming that the Defendant was liable under the State Compensation Act for the death of the Deceased.

D. Determination

1) According to Article 16 of the Crime Victim Protection Act, the requirements for the payment of the bereaved family relief fund are cases where a person who suffers from a crime subject to relief (hereinafter “victim.” In this case, the deceased is not fully or partially compensated for damage. According to Article 20 of the same Act and Article 16 of the Enforcement Decree of the same Act, the State shall not pay the bereaved family relief fund within the scope of the amount to be paid when a victim or his/her bereaved family member is entitled to receive compensation pursuant to Article 2(1) of the State Compensation Act on the ground of a criminal injury. According to Article 30 of the same Act, where the amount of the relief fund was erroneously paid, the State may recover all or part of the relief fund received by a person who received the relief fund (in this case, Plaintiff 3 and Plaintiff 4 are applicable only to Plaintiff 3 and Plaintiff 4) through a decision by the District Council or the Central Council, but the method of recovery shall comply with the collection of national taxes.

2) In the instant case, Plaintiffs 3 and 4 are entitled to the payment of damages under Article 2 of the State Compensation Act by the Defendant, which are the amount of damages for which the Defendant paid KRW 35,820,225, respectively, and damages for delay thereof. As such, the State should not pay relief funds to the said Plaintiffs pursuant to Article 20 of the former Crime Victim Protection Act and Article 16 of the Enforcement Decree of the same Act, within the scope of the above compensation benefits. Ultimately, this constitutes a case where relief funds under Article 30(1)3 of the same Act were erroneously paid. Accordingly, the State should make restitution according to the procedure of collection of national taxes, namely, tax notice, demand, disposition for arrears, public auction, etc., after the amount to be recovered was determined by the District Council or the Central Council’s decision.

However, the evidence submitted by the defendant alone is insufficient to recognize that the recovery amount has been determined through the decision of the District Council or the Central Council, and there is no other evidence to acknowledge it. Therefore, the defendant's above assertion based on this premise is without merit without further review.

3. Conclusion

The first instance judgment is justifiable. The defendant's appeal is dismissed.

[Attachment]

Judges Harmful (Presiding Judge) Credit of Yellow Sea;