(영문) 대법원 2017.5.11.선고 2016다260646 판결

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. All of the Defendant’s appeals are dismissed.

Reasons

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

1. Judgment on the Defendant’s grounds of appeal

A. Regarding ground of appeal No. 1

1) In light of the fact that there is no legal fiction in the application of penal provisions to the Act on Finding the Truth of Persons Affected by Hansen's Disease and Support for Victims (hereinafter "the Act"), the lower court determined that the Defendant's assertion that the acts of this case and the acts of this case by each law firm under Article 31 (1) 3 of the Act are invalid, on the sole basis of the fact that the members of the Committee for Finding the Truth of Persons Affected by Hansen's Disease (hereinafter "the Committee") and the Working Committee for Finding the Truth of Persons Affected by Hansen's Disease under Article 4 of the same Act (hereinafter "Working Committee") cannot be deemed public officials under Article 31 (1) 3 of the Attorney-at-law Act, who worked as the members of the Committee for Finding's Truth under the premise that they are public officials, constitute the acts of restricting the acceptance of the Plaintiffs' cases under Article 31 (1) 3 of the Attorney-at-law Act.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the above determination by the court below is just, and there is no error by misapprehending the legal principles as to the interpretation of Article 31 of the Attorney-at-Law Act. 2) Meanwhile, the court below determined that, even if a member of the Family Fact-Finding Committee and members of the working committee were public officials under Article 31 (1) 3 of the Attorney-at-Law Act, the entire procedural acts of this case by law firm FY, law firm FY, law firm FX, and law firm FV on behalf of the plaintiffs separately from law firm FU and FV law firm, so long as the acts of this case were conducted on behalf of the plaintiffs, they cannot be deemed null and void.

This part of the judgment of the court below is merely a family and additional judgment, so long as the judgment of the court below that the members of the Truth Committee and the working committee cannot be deemed public officials as seen earlier is justifiable, the legitimacy of the above family and additional judgment does not affect the conclusion of the judgment, and the grounds for appeal on this point cannot be accepted without the need to further examine.

B. Regarding ground of appeal No. 2

1) The lower court acknowledged the fact that the Plaintiffs were admitted to the National Dondo Hospital, the National Dolin Hospital, the National Dolin Hospital, the Donsan Hospital, the National Donsan Hospital, the Ilsan Hospital, the Ilsan Hospital, the National Donsan Donsan Donsan Donsan Donsan Do, and the Mansan Donsan Donyang (hereinafter “National Donsando Hospital, etc.”) and resided in the area where they received treatment from Hansen's disease and received treatment from doctor, nurse, or the Defendant from the medical training school established by the National Dondo Hospital, etc. from around 1947 to 1973.

In addition, based on the facts stated in its reasoning, the lower court determined that: (a) the Defendant’s policies on the restriction of human rights of affected persons with Hansen’s disease and the surgery on abortion and on the articles of association did not have any legal basis; (b) did not have the appropriateness and minimum level of the means; and (c) did not have any balance of legal interests, thereby infringing on the rights to personality, equality, right to self-determination, right to self-determination, right to privacy, and right to pursue happiness; and (b) the Defendant’s implementation of the illegal policy on restriction of human rights of affected persons with Hansen’s disease to investigate the body of the male and female; and (c) the Defendant’s implementation of the policy on restriction of human rights of affected persons with Hansen’s disease and the right to pursue happiness is an unlawful act that infringes on the right to self-determination and right to pursue happiness; and (c) the Defendant’s implementation of the policy on restriction of human rights of affected persons with Hansen’s disease and the right to self-determination and right to pursue happiness.

Furthermore, the court below held that: (a) even if both men and women wished to live in or have given birth to the sanatorium, it is unlawful for the defendant, who, as a matter of course, had a duty to cure and protect the affected persons affected by Hansen's disease as a matter of course, to allow male and female living in the sanatorium, and to visit and live in the sanatorium for affected persons' disease only when performing abortion surgery; and (b) even if the defendant, whose primary mission was to protect the people, failed to take any measures against the sanatorium; (c) since the defendant's abortion surgery and the articles of association were illegal, it cannot be justified even if he consented to the illegal abortion surgery and the articles of association; and (d) even if he did not properly undergo abortion surgery and the articles of association without any resistance, he did not accept the defendant's personal rights as to the defendant's unlawful abortion surgery and the articles of association; and (c) did not accept the defendant's medical care surgery and the articles of association for affected persons' disease; and (d) did not accept the defendant's medical care surgery and the articles of association.

2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of “violation of Acts and subordinate statutes”

1) The lower court determined that it was reasonable to view the Plaintiffs as having known of the damages and the perpetrator at the time of the above decision, on the grounds that the Defendant’s decision was made in accordance with the Act on the Protection of Persons affected by Hansen’s Disease and that the Defendant’s child-related policy and abortion surgery and the AO surgery were illegal acts in violation of the statutes and the duty to protect the fundamental human rights of the Plaintiffs.

In addition, the court below determined that the defendant's assertion of the completion of extinctive prescription against the plaintiffs constitutes an abuse of rights against the principle of trust and good faith, and thus it cannot be allowed, unless there are special circumstances. The court below held that the defendant's assertion of the completion of extinctive prescription against the plaintiffs constitutes an abuse of rights against the principle of trust and good faith, on the premise that the defendant's assertion of the extinctive prescription period in a specific litigation case would not be denied. The court below held that the defendant's assertion of the completion of extinctive prescription is not allowed.

Furthermore, the Plaintiffs, who were determined as victims of human rights affected by Hansen’s disease under the Act on the Protection of Persons Affected by Hansen’s Disease, expected the Defendant to take all and all appropriate measures to compensate for such damages, but only when the Defendant did not take any active measures, may bring an action against the Defendant to compensate for damages. As such, it was reasonable to deem that the Plaintiffs, who filed the instant lawsuit before three years elapse from the date when the Truth Committee first decided to be the victim, exercised their rights within a considerable period of time to exclude the Defendant’s defenses

2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and it did not err by misapprehending the legal doctrine on the interpretation of the good faith principle applied to the rejection of the claim for extinctive prescription.

2. Judgment on the plaintiffs' grounds of appeal

A. As to the amount of consolation money for non-property damage suffered by tort, the fact-finding court may determine it at its discretion by taking into account various circumstances, and the court does not have to clearly state all the circumstances that form the basis for the determination of consolation money in its reasoning in its judgment (see, e.g., Supreme Court Decision 2002Da43165, Nov. 26, 2002). However, this does not mean that this would lead to the judge’s computation of consolation money in mind. The calculation of consolation money must be consistent with the relevant age and general legal sentiment. As a matter of course, there is a limit that should be consistent with the calculation of consolation money, and the calculation of consolation money is beyond the limit that goes beyond the bounds of discretion of the fact-finding court (see, e.g., Supreme Court Decision 2008Da3527, Dec. 24, 2009).

B. The court below acknowledged the illegality of abortion surgery and articles of association surgery conducted against the plaintiffs and physical and mental suffering suffered by the plaintiffs. However, the court below determined consolation money for the plaintiffs as KRW 20 million without distinguishing the plaintiffs who received abortion surgery and articles of association legislation, and uniformly decided consolation money for the plaintiffs without distinguishing them from those who received the abortion surgery and articles of association legislation. However, the court below's aforementioned determination is hard to accept based on the following reasons. It is hard to accept: (a) The court below determined consolation money for the plaintiffs without distinguishing them from those who received the abortion surgery and articles of association legislation; and (b) there are reasons for calculating consolation money.

1) As determined by the lower court, Defendant’s doctor, etc. did not have legal grounds or deemed that it did not comply with the lawful requirements, such as abortion surgery and the articles of association saving operation performed against the Plaintiffs affected by Hansen’s disease. As such, the Defendant violated the right not to be damaged by the Constitution as a direct infringement on the Plaintiffs’ body, and the right not to life, etc. of a fetus. The Defendant infringed upon or restricted the Plaintiffs’ right to pursue happiness by making a fright home with respect to which the Plaintiffs suffered bodily injury by prohibiting the pregnancy and childbirth of the persons affected by Hansen’s disease.

2) If the Defendant’s above infringement intends to be recognized as a legitimate exercise of governmental authority pursuant to the government’s policy, there must be explicit grounds for such infringement in accordance with the law, and it does not contravene the principle of excessive prohibition. However, considering the risk, infection risk, treatment possibility, etc. of Hansen’s disease prevention, even if considering the purpose of health policy of Hansen’s disease prevention is considered, it is difficult to recognize the appropriateness of such means or the minimum degree of damage.

3) Even if the plaintiffs agreed to the above alcohol, in order for them to be valid, consent should be obtained from the plaintiffs, who are the parties to the infringement, based on the prior explanation. However, the plaintiffs seem to have consented to due to social prejudice and discrimination against Hansen's disease, poor social, educational, and economic conditions, etc. without sufficiently explaining whether Hansen's disease occurred, whether it is likely to be infected with children, and whether it is possible to provide medical treatment, etc., and they cannot be deemed to have consented to their free and genuine intent. Accordingly, the defendant's act cannot be justified solely on the ground that the plaintiffs and other persons affected' disease were formally consented.

4) Furthermore, abortion surgery conducted on a pregnant woman is more severe than physical abuse and aggression, and is highly likely to be criticized as an infringement on the life rights of a fetus formed, as well as the mental suffering of a woman who is deprived of maternity due to enforcement by rule of experience is more serious than that of other types of tort in general.

5) In addition, when a case was determined as a victim under the Act on Persons Affected by Hansen’s Disease, the number of persons affected by Hansen’s Disease was more than 40 years to 60 years has passed since the occurrence of the damage, and the Act on Persons Affected by Hansen’s Disease also aims at the uniform recovery of the damage, and there are special circumstances, such as the number of the victims is very large and nationwide distribution, equity between the victims should also be considered.

However, in Supreme Court Decision 2014Da230535 Decided February 15, 2017, the Defendant’s appeal was dismissed, and the judgment that determined consolation money for persons affected by Hansen’s disease as a considerably higher amount than the instant case became final and conclusive. It is difficult to find any special circumstance to change the amount of consolation money in this case.

D. Examining these circumstances in light of the legal principles as seen earlier, even though the amount of consolation money is to be determined by the discretionary authority of the fact-finding court, the lower court should be deemed to have exceeded the bounds of its discretion, contrary to the ideology of fair sharing of damages and the principle of equity, by not taking into account all circumstances that should be taken into account in calculating consolation money.

Ultimately, the court below erred by misapprehending the legal principles as to the calculation of consolation money, thereby exceeding the bounds of its discretion, and the plaintiffs' grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed in entirety. It is so decided as per Disposition by the assent of all participating Justices on the bench.