The case holding that, in a case where: (a) Party A was found guilty on the grounds that Party B, who participated in the Vietnam War, was convicted of violating the anti-public law after he was discharged from military service on the ground that Party B was found guilty of violating the anti-public law; and (b) Party B claimed by Party B on the ground that the result of the investigation by the Committee on Conciliation of History for Truth and Reconciliation was conducted on the ground that Party B’s request was conducted on the ground that Party B and Co-Defendant C were detained with the Central Information Department investigators of the Republic of Korea, and the Co-Defendant (hereinafter referred to as “Co-Defendant”) was forced to file a confession statement in the absence of discretion; and (c) Party A was found not guilty on the ground that Party A was not aware of the existence of admissibility of a confession statement in the prosecution investigation and the case subject to review; and (d) Party A did not seek compensation for damages from Party A due to an unlawful confinement and harsh act; and thus, Party A was found to have been held liable for damages due to Party A’s voluntary discharge of military service on the judgment.

After having entered the Army as a long-term staff soldier, and after having been transferred to the Army as a Vietnam War, the judgment became final and conclusive after having been convicted of the violation of anti-public law by Gap, who participated in the Vietnam War, who was awarded the Order of Tranchi Military Merit, etc. by his merit, and discharged him from military service upon receiving an order of discharge from military service not based on source pursuant to Article 37 (1) 2 of the former Military Personnel Management Act (amended by Act No. 2979 of Dec. 31, 1976; hereinafter “former Military Personnel Management Act”). After having been discharged from military service on the ground of the results of the investigation by the Committee on the Settlement of History for Truth and Reconciliation, Eul filed a request from the Central Information Division for a new trial on the above judgment, and the co-defendant committed a confession statement in an unvoluntary state of detention after being committed to the investigator of the National Information Division and received the order of confession by assault, threat, etc., on the ground that the admissibility of evidence in the case subject to a new trial and retrial became final and conclusive.

Article 71 of the former Budget Act (wholly amended by Act No. 4102, Mar. 31, 1989); Article 76(1) of the Civil Act provides that “The State shall be held liable for damages arising from forced discharge of military service and for damages arising from forced discharge of military service under Article 6(1)6 of the Civil Act (wholly amended by Act No. 4102, Mar. 31, 1989); Article 71 of the former Budget Act (wholly amended by Act No. 4102, Apr. 6, 2006); Article 76(1) of the Civil Act provides that “The State shall be held liable for damages arising from forced discharge of military service and for damages arising from forced discharge of military service under Article 6(1)6 of the former Act (wholly amended by Act No. 4102, Apr. 6, 2006).”

Articles 2(1) and 8 of the State Compensation Act, Article 71 of the former Budget and Accounts Act (wholly amended by Act No. 4102 of March 31, 1989) (see Article 96 of the current National Finance Act), Articles 166(1), 751, and 766 of the Civil Act, Article 37(1)2 of the former Military Personnel Management Act (amended by Act No. 2979 of December 31, 197), Article 37(1)4 of the former Military Personnel Management Act (see current Article 37(1)4 of the former Military Personnel Management Act), Article 49 of the former Enforcement Decree of the Military Personnel Management Act (amended by Presidential Decree No. 8425 of January 28, 197), Article 4 of the former Rules on Discharge from Military Service (repealed by Act No. 3477 of September 20, 192)

Plaintiff (Law Firm Gyeong-Gyeong, Attorney Park Woo, Counsel for the plaintiff-appellant)

Korea

Daegu District Court Decision 2018Gadan113598 Decided October 30, 2018

June 12, 2019

1. The judgment of the court of first instance is modified as follows.

A. The Defendant shall pay to the Plaintiff 50,000,000 won with 15% interest per annum from June 12, 2019 to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit are borne by the Defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) The plaintiff's entrance and discharge process;

1) On May 27, 1969, the Plaintiff entered the Army as a private soldier, but was on January 26, 1970.

2) From March 29, 1971 to March 5, 1973, the Plaintiff was awarded a military commander’s official commendation on August 13, 1971, and served as a Vietnam War veteran for two years from March 29, 1971, and was awarded the Order of the French Military Service Merit on March 16, 1972. On August 1, 1972, the Plaintiff was promoted to the First Lieutenant on December 2, 196.

3) After returning from March 8, 1973 to August 20, 1974, the Plaintiff served in the Army ○○○○○○ Group, and from August 21, 1974 to June 30, 1975, the Plaintiff performed information and operations at the Special Power Headquarters Jeju △△ Group, etc.

4) Of that, on July 5, 1975, the Plaintiff was transferred to the KFEA around July 5, 1975, and on April 30, 1976, according to the personnel management order of the 3 military headquarters, the Plaintiff was ordered to discharge from military service not subject to the application pursuant to Article 37(1)2 of the former Military Personnel Management Act (amended by Act No. 2979, Dec. 31, 1976) (hereinafter “instant compulsory discharge”).

B. Judgment of acquittal in a criminal case by Nonparty 1 of the Plaintiff’s lodging room

1) Around February 7, 1974, the Plaintiff’s accommodation Nonparty 1 was detained by the investigator belonging to the Central Information Department in the form of voluntary movement without a warrant. A detention warrant was issued on February 13, 1974 and detained.

2) On November 1, 1963, from around November 1, 1966 to around November 1, 1966, the facts charged (such as aiding and abetting Nonparty 2, Nonparty 3, and Nonparty 4’s counter-espionage activities and aiding and abetting Nonparty 3 and Nonparty 4 to sleep out, which were charged with the Seoul District Criminal Court 74 high-priced160, 175, 181, and 196, and was sentenced to life imprisonment on July 24, 1974. While appealed and filed a final appeal, the appeal and final appeal were entirely dismissed by the Seoul High Court 74No112 delivered on December 9, 1974, and by the Supreme Court 75Do279 delivered on April 8, 1975, and the judgment became final and conclusive (hereinafter “instant judgment”).

3) After that, on the grounds that the former Nonparty 1’s son’s investigation, etc. conducted the investigation of the “former History Settlement Commission for Truth and Reconciliation” on the “Ulleungdo Spy Group case,” the lower court rendered a judgment of innocence on the grounds that the investigator’s criminal facts, such as illegal confinement and cruel acts, were proven, etc., upon filing a request for review of the instant judgment subject to review, and the decision of commencing retrial was rendered on August 16, 2013. On October 24, 2014, the Seoul Central District Court Decision 2013 Inventory 21, Seoul Central District Court Decision 2015 decided Oct. 24, 2014, the deceased Nonparty 1 and co-defendant 1 made a confession statement in the state of voluntary detention, such as assault, intimidation, etc., pending in the court of prosecutorial investigation and the case subject to review, on the grounds that the confession statement is inadmissible or it is difficult to believe it as it is, following the appellate court and the final appeal judgment.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 8, purport of whole pleadings

2. The parties' assertion

A. The plaintiff

The Plaintiff was subject to compulsory discharge from military service due to the violation of the Anti-Public Law by the deceased non-party 1, who is a well-known and exemplary worker, while serving in military service as an excellent and exemplary worker. However, the instant case was committed by illegal confinement and cruel acts by the investigators of the Central Information Department, and accordingly, the compulsory discharge from military service against the Plaintiff was illegal. Accordingly, the Republic of Korea is liable to compensate the Plaintiff for the damages suffered by the Plaintiff. The Plaintiff seeks payment of the amount stated in the claim as consolation money out of compensation.

B. Defendant

The plaintiff's right to claim damages has expired five years since April 30, 1976, which was a compulsory discharge disposition against the plaintiff.

3. Determination

A. The defendant's liability for damages

1) The underlying statutes at the time of compulsory discharge from active service of this case are as follows.

(3) A person who falls under any of the following subparagraphs may be discharged from active service through deliberation by the committee for examination of discharge from active service; 2. A person who is unfit for active service as prescribed by the Presidential Decree (amended by the Presidential Decree No. 8425 of Jan. 28, 1977) of the former Military Personnel Management Act (amended by Act No. 2979 of Dec. 31, 197). The term "person who is incapable of performing his/her duties" means a person who is incapable of performing his/her duties falling under any of the following subparagraphs:

1) Article 48 of the Decree

2) In light of the aforementioned basic facts and the testimony of Nonparty 6 of the first instance trial witness, the Plaintiff was discharged from military service while serving in Vietnam and served as an excellent soldier after having returned to Korea. In addition, it does not seem that there existed any other grounds for non-conformity with the duty of military service as prescribed by the relevant laws and regulations, including the former Military Personnel Management Act.

Nevertheless, on July 5, 1975, the Plaintiff was transferred to the Kieng Yaeng University on April 30, 1976, and was subject to the instant compulsory discharge on April 30, 1976. This was not long after the Plaintiff’s judgment subject to the instant compulsory discharge on April 8, 1975 was finalized on April 8, 1975, and if there was a person who was convicted of violation of the anti-public law among the relative relatives at the time, it cannot be denied that there was any disadvantage due to the annual election against the pertinent public official or soldier. In full view of all, the Plaintiff can be deemed to have been subjected to the instant compulsory discharge on account of the instant judgment subject to the instant compulsory discharge on the part of the deceased Non-Party 1, who was well-known, and there is no other counter-proof thereto.

Furthermore, the judgment subject to the instant judgment against the deceased non-party 1 was based on the false confession by the investigators of the Central Information Department due to the illegal confinement and harsh treatment by the investigators of the Central Information Department, and caused a serious anti-human rights and organized tort by the state public officials. Accordingly, the instant compulsory discharge disposition on the ground of the judgment of the case, such as violation of the anti-public law against the deceased non-party 1, shall be deemed illegal.

Therefore, the defendant is liable to compensate the plaintiff for consolation money that the plaintiff seeks from the losses incurred by the compulsory discharge disposition of this case, barring any other special circumstances.

B. Determination on the statute of limitations defense

1) Whether the objective starting point of the extinctive prescription under the Civil Act applies to the defendant's liability for damages concerning the decision subject to a retrial

According to Article 71(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 4102 of March 31, 1989), Article 71(2) and (1) of the State Compensation Act, Article 8 of the State Compensation Act, Articles 166(1) and 766(1) and (2) of the Civil Act, with respect to the Plaintiff’s right to claim damages, the extinctive prescription of five years shall apply from three years from the date the Plaintiff becomes aware of the damage and the perpetrator (the starting point of starting the supervisory point, Article 766(1) of the Civil Act) or from the date of tort (the starting point, Articles 166(1) and 766(2) of the Civil Act

However, the instant judgment subject to a retrial is an unlawful act, such as unlawful confinement and harsh treatment by the investigators of the Central Information Department, and constitutes a serious case of violation of human rights and a suspicion of manipulation as stipulated under Article 2(1)4 of the Framework Act on the Settlement of History for Truth and Reconciliation (amended by Act No. 7542 of May 31, 2005; hereinafter the “Miscin Adjustment Act”).

As the Constitutional Court en banc Decision 2014Hun-Ba148, 162, 219, 466, 2015Hun-Ba50, 223, 290, 2016Hun-Ba419 decided August 30, 2018, regarding the cases stipulated in Article 2(1)3 (a group sacrifice case) and 4 (a serious violation of human rights) of the past Act, it is difficult to conclude that the State’s right to demand compensation is in violation of the principle of fair and reasonable interpretation of the Constitution that guarantees the protection of the State’s fundamental rights beyond the bounds of the State’s right to seek compensation after the lapse of the period of time, and that the State’s right to demand compensation for unlawful acts would be in violation of the principle of free and reasonable interpretation of the Constitution that guarantees the protection of the State’s fundamental rights by way of the State’s fundamental rights beyond the bounds of the general State’s right to seek compensation for damages.

Therefore, as to the State's liability for damages caused by the instant judgment subject to a retrial, which constitutes a serious violation of human rights under Article 2 (1) 4 of the previous Bankruptcy Adjustment Act and a suspicion of suspected manipulation, the determination of the expiration of the extinctive prescription cannot be made as to whether the period of extinctive prescription has lapsed by applying the objective starting point of counting the extinctive prescription period under Articles 166 (1) and 766 (2) of the Civil Act, and whether the “five years from the date on which the Plaintiff committed the tort” has lapsed pursuant to Article 766 (1) of the Civil Act.

2) Whether extinctive prescription of the Plaintiff’s right to claim damages expires

The Plaintiff’s right to claim damages pertains to a compulsory discharge on the ground of the instant judgment subject to a retrial, which is a serious violation of human rights and manipulation as prescribed by the Former Bankruptcy Adjustment Act. As such, the State’s illegality in regard to the instant judgment subject to a retrial and its liability for damages therefrom also extend to the compulsory discharge of the instant case against the Plaintiff. Therefore, Articles 166(1) and 766(2) of the Civil Act regarding the objective starting point of reckoning the statute of limitations for the Plaintiff’s right to claim damages cannot be applied, but Article 766(1) of the Civil Act on the starting point

“The date when the injured party becomes aware of the damage and the perpetrator” under Article 766(1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the right to claim damages due to a tort, means the time when the injured party has reasonably and specifically recognized the elements of the tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Furthermore, at any time, whether the injured party, etc. is deemed to have actually and specifically recognized the elements of the tort should be reasonably determined by taking into account various objective circumstances in each individual case and taking into account the situation in which the claim for damages is practically possible (see Supreme Court Decision 2010Da7577, May

In light of the above basic facts, Gap evidence No. 11, and the purport of the whole pleadings, the judgment of innocence in the retrial of this case became final and conclusive on October 29, 2015. The plaintiff is not aware of such facts. The plaintiff can find the facts known by Nonparty 7, the deceased Nonparty 1, the son of the deceased Nonparty 1, in the middle of December 2017. Until the judgment of innocence in the judgment of retrial becomes final and conclusive, it is difficult to view the facts of the above state's tort requirements as real and specific, and it is difficult to view that the plaintiff suffered secondary damages due to such tort, who was unable to know such facts further.

Ultimately, when the plaintiff becomes aware of the judgment not guilty in the above retrial, he/she should be deemed to have become aware of the damages caused by illegal acts of the State and of the perpetrator. Since the plaintiff filed the lawsuit in this case on May 2, 2018, which is within the period of extinctive prescription (three years) thereafter, the extinctive prescription for the plaintiff's right to claim damages was not expired (the same shall apply to the fact that the lawsuit in this case was brought within three years thereafter even if the judgment not guilty in the family death was based on October 29, 20

[A] Even if the statute of limitations has expired for the Plaintiff’s claim for damages, in a case where a public prosecution was instituted based on evidence, etc. collected by a government agency due to an illegal act during the investigation process, and the existence of grounds for retrial was revealed later, and thereafter, a judgment of innocence became final and conclusive in the retrial procedure, and a claim is filed against the State for damages due to an illegal act of a government agency, etc., the obligee’s defense of the statute of limitations cannot be allowed as an abuse of rights against the principle of trust and good faith. However, barring special circumstances, the obligee’s defense of the statute of limitations cannot be allowed as an abuse of rights against the principle of trust and good faith. However, as the Supreme Court precedents (see Supreme Court Decision 2013Da201844, Dec. 12, 2013) holding that the right should be exercised within six months prior to the final and conclusive judgment of innocence, the Plaintiff, who was not a direct party to the judgment of innocence, was within six months prior to the final and conclusive judgment of innocence.

3) Sub-determination

Therefore, the defendant's argument that the statute of limitations expires is without merit.

(c) Scope of damages;

In cases where it is inevitable to increase the amount of consolation money that reflects the results of a significant change in the national income level, monetary value, etc. at the time of the conclusion of arguments at the time of the occurrence of a long period between the time of tort and the time of the conclusion of arguments, as well as where the amount of consolation money that reflects such change is considerably unavoidable, damages for delay of compensation liability due to tort shall exceptionally be deemed to have occurred from the date of the conclusion of arguments at the time of the conclusion of arguments at the time of the conclusion of arguments at the time of the conclusion of arguments. In such cases, it is necessary to appropriately increase the amount of consolation money at the time of the conclusion of arguments at the time of the conclusion of arguments in consideration of the circumstances where the compensation for consolation money in the amount deemed appropriate as at the time of the establishment of the obligation is delayed for a long time until the time of the conclusion of arguments at the time of the arguments (see, e.g., Supreme Court Decision 2011Da38

Taking into account all the circumstances revealed in the pleadings of the instant case, including the fact that the Plaintiff, while faithfully performing military service, was forced to be discharged from military service on the ground of the judgment subject to a retrial that was caused by the anti-human rights and organized tort of state public officials, and that the Plaintiff’s honor as a soldier on the ground of the judgment subject to a retrial, and that the Plaintiff’s family member’s family member’s family member’s family member’s family member after forced discharge from military service, and that the Defendant appears to have continued for a long period of 40 years until the judgment on innocence of the instant case was rendered, it is reasonable to determine the amount of consolation money to be paid to the Plaintiff as KRW 50 million.

D. Sub-determination

Therefore, the Defendant is obligated to pay the Plaintiff damages for delay calculated by the rate of 15% per annum from June 12, 2019, which is the date of the closing of argument in this case, to the day of complete payment.

4. Conclusion

Thus, the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair in conclusion, it is accepted in part of the plaintiff's appeal and it is modified as the judgment of the court of first instance

Judges Kim Jong-ok (Presiding Judge)

1) The former Enforcement Decree of the Military Personnel Management Act was wholly amended by Presidential Decree No. 4922 on April 20, 1970, and the contents of Article 48 (Discharge from Active Service) which is the relevant provision were transferred to Article 49 (Discharge from Active Service). However, the former Enforcement Decree of the Military Personnel Management Act, which is the Ordinance of the Ministry of National Defense, has not been amended, was repealed simultaneously with the enactment of the Enforcement Rule of the Military Personnel Management Act on September 20, 1982.