[1] In cases where the Constitutional Court rendered on August 30, 2018 (1), Article 166(1), Article 766(2) of the Civil Act that applies to Article 2(1)3 (a) and 4 (a) of the Framework Act on the Settlement of Historys for Truth and Reconciliation) of the Act on the Settlement of Truth and Reconciliation is unconstitutional, and where a claim is made for compensation of damages due to a public official’s unlawful performance of duties in cases falling under subparagraphs 3 and 4 of the above Article 166(1) and Article 766(2) of the Civil Act or Article 96(2) of the National Finance Act, whether the statute of limitations is applied to the claim for compensation of damages (negative)

[2] In a case where the former Bankruptcy Settlement Commission established a truth-finding on the case of a civilian’s sacrifice as defined in Article 2(1)3 of the Framework Act on the Settlement of History for Truth and Reconciliation, the “date when the victim and his/her bereaved family members become 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 regarding the right

[1] Article 8 of the State Compensation Act, Articles 166(1) and 766 of the Civil Act, Article 32 of the former Accounting Act (repealed by Act No. 217 of September 24, 1951 to Article 82 of the Financial Act), Article 2(1)3 and 4 of the Framework Act on the Settlement of History for Truth and Reconciliation / [2] Article 766(1) of the Civil Act, Articles 2(1)3, 26, and 28 of the Framework Act on the Settlement of History for Truth and Reconciliation

[1] Supreme Court Decision 91Nu1462 Decided February 14, 1992 (Gong1992, 1065), Supreme Court Decision 96Nu1627 Decided April 26, 1996 (Gong1996Sang, 1767), Supreme Court Decision 2018Da233686 Decided November 14, 2019 (Gong2020Sang, 166), Supreme Court Decision 2014Hun-Ba148, 162, 219, 219, 466, 2015Hun-Ba50, 2014Hun-Ba23, 290, 2016Hun-Ba263, 2016Hun-Ba419 Decided August 30, 2018 (Hun-Ba263, 1394) / [206Da36964, Feb. 26, 2006]

Plaintiff

Korea

Seoul Central District Court Decision 2017Na57068 Decided May 17, 2018

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. A. According to Article 8 of the State Compensation Act, Articles 166(1), 766(1) and (2) of the Civil Act, Article 96(2) and (1) of the National Finance Act [Article 32 of the former Accounting Act (amended by Act No. 42 of Apr. 7, 1921, and repealed by Act No. 217 of Sept. 24, 1951)], with respect to a claim for State compensation, the victim or his legal representative becomes aware of the damage and the perpetrator (the subjective starting point under Articles 166(1) and 766(1) of the Civil Act), three years from the date he or she became aware of the damage (the objective starting point under Articles 166(1) and 766(2) of the Civil Act) or the date he or she committed a tort (the extinctive prescription shall be applied in principle for five years from the date he or she became aware of the damage and the perpetrator).

However, 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 the Truth and Reconciliation (hereinafter “The Act”) and Article 2(1)4 of the same Act that applies to “the case of collective sacrifice by a private person” in Article 166(1) and Article 766(2) of the Civil Act and “the case of suspicion of serious human rights violations and manipulation,” shall be unconstitutional (see, e.g., Constitutional Court en banc Decision 2014Hun-Ba148, etc.; hereinafter “instant decision of unconstitutionality”).

B. The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a request for adjudication on the constitutionality of the same kind, or where the request for adjudication on the constitutionality of the same kind is made to the court before the decision of unconstitutionality is made, but it does not extend to all general cases where the relevant law or the provisions of the law are based on the premise of judgment (see, e.g., Supreme Court Decisions 91Nu1462, Feb. 14, 1992; 96Nu1627, Apr. 26, 1996).

Therefore, in a case where the decision of unconstitutionality of this case becomes effective, Article 2(1)3 of the previous Bankruptcy Adjustment Act or Article 166(1) and Article 766(2) of the Civil Act does not apply to a claim for damages arising from a public official’s unlawful performance of his/her duties in a case involving “a group sacrifice case of a private person” under Article 2(1)4 of the same Act, and Article 96(2) of the National Finance Act (see Supreme Court Decision 2018Da23686, Nov. 14, 2019) that provides for the period of extinctive prescription of the right to the payment of money to the State for the purpose of the payment of money to the State is based on such objective starting point (see Supreme Court Decision 2018Da23686, Nov. 14, 2019).

2. A. On October 18, 1950, the lower court acknowledged the Plaintiff’s claim for damages under Article 2 of the State Compensation Act against the Defendant, who is the deceased Nonparty 1 (hereinafter “the deceased”), the heir of the deceased Nonparty 1 (hereinafter “the deceased”), who was the victim of the civilian sacrifice incident occurred in the Young-gun, by the military personnel and the police, around October 18, 1950, and rejected the Plaintiff’s claim that the long-term extinctive prescription under Article 766(2) of the Civil Act expired, and that the Defendant’s claim constitutes an abuse of rights against the principle of good faith.

B. However, the lower court’s determination is difficult to accept for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) Around October 18, 1950, the Navy, who was dispatched to the Choho Lake-gun, Jeonnam-gun, and the police, was killed in the process of mass death of the mountain-ri residents in the mountain-ri-ri-ri-ri-ri-ri-ri-gu during the soar while carrying out the brea-ri operations (hereinafter “Yaam-ri-si case”), and the Deceased.

B) On December 30, 2008, the committee for reorganization of past history for truth-finding and reconciliation (hereinafter “the committee for reorganization of history history”) investigated the case of civilian death by the deceased’s application by Nonparty 2, who is another child of the deceased, etc., and as a result of the investigation, on December 30, 2008, confirmed that the deceased was a victim who was sacrificingd in the Sim that the deceased was the victim.

C) The Plaintiff is the deceased’s child, and filed the instant lawsuit on November 15, 2016.

2) Examining the above facts in light of the legal principles as seen earlier, the Plaintiff’s claim for damages constitutes the State’s compensation claim for damages caused by a public official’s unlawful performance of duties in the case of a civilian group sacrifice under Article 2(1)3 of the previous Bankruptcy Adjustment Act. According to the effect of the decision of unconstitutionality of the instant case, the long-term extinctive prescription under Articles 166(1) and 766(2) of the Civil Act and Article 32 of the previous Accounting Act does not apply to the Plaintiff’s claim for damages, and only the subjective starting point of counting under Article 766(1) of the Civil Act and only the short

C. Nevertheless, the lower court, on the grounds as indicated in its reasoning, applied the provision that the Plaintiff’s claim for damages becomes invalid according to the Constitutional Court’s decision of unconstitutionality. In so determining, the lower court erred by misapprehending the legal doctrine on extinctive prescription, contrary to what is alleged in the grounds of appeal

Meanwhile, in a case where the past History Settlement Commission conducted a truth-finding on a civilian’s case of sacrifice under Article 2(1)3 of the Act, the period of extinctive prescription under Article 766(1) of the Civil Act as to the claim for damages by the victim and his/her bereaved family members is not the date of the truth-finding decision, but the date on which the notice of fact-finding decision was served (see Supreme Court Decision 2019Da220526, Mar. 26, 2020).

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)