Plaintiff 1 and 55 others (Attorneys Lee Jae-jin et al., Counsel for the plaintiff-appellant)

Plaintiff 1’s successor Intervenor 1 and seven others (Attorney Lee Jae-jin et al., Counsel for the plaintiff-appellant-appellee)

Republic of Korea (Government Law Firm Corporation, Attorney Full-soo, Counsel for defendant-appellant)

August 14, 2019

Seoul Central District Court Decision 2013Gahap525125 Decided June 14, 2018

1. Revocation of the first instance judgment.

2. The defendant shall pay to each of the plaintiffs and the plaintiff 1's successors in the annexed calculation sheet "the plaintiff" with 5% interest per annum from January 1, 1999 to February 7, 2020, and 15% interest per annum from the next day to the day of full payment.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

주문과 같다(제1심 공동원고 ○○○이 제1심판결 선고 후 사망함에 따라 이 법원에서 그 공동상속인들인 ◎◎◎, ◁◁◁, ▷▷▷이 소송절차를 수계하였고, 이에 맞추어 원고들이 위와 같이 청구취지를 변경함으로써 항소취지도 함께 변경된 것으로 본다).

1. Basic facts

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○○ 9-4 through 6’s attached Form 2’s “The current status of farmland distribution” or “land (hereinafter “the land located in the Dong-dong, Dong-dong”) are as follows:

The land of approximately 300,000,000 square meters (hereinafter referred to as the “the land of this case”) in Yeongdeungpo-gu Seoul Metropolitan Government, Dong-dong, including the 586 square meters (number 1 omitted), Dong-dong (hereinafter referred to as the “Dong-dong, Dong-dong”).

○ 9, 10 to 13 shall be deleted.

The former Farmland Reform Act (amended by Act No. 108 of Mar. 10, 1950) (amended by Act No. 108 of Oct. 13, 1960; hereinafter referred to as the “former Farmland Reform Act”) in the 9th 14 to 15th 194, is deemed to read “the former Farmland Reform Act (amended by Act No. 561 of Oct. 13, 1960)”.

In the 201th parallel 9th parallel 6th parallel, the term “former Enforcement Decree of the Farmland Reform Act” means “former Enforcement Decree of the Farmland Reform Act (amended and enforced by Presidential Decree No. 294 on March 25, 1950; hereinafter “former Enforcement Decree of the Farmland Reform Act”)”.

○○ 1 to 3 parallels “(1) through (2) as seen below,” are as follows:

The term "contributor" in the attached Table 1 calculation table distributed farmland (hereinafter referred to as "the farmland distributed in this case") to the deceased non-party 1, the deceased non-party 2, the deceased non-party 3, the deceased non-party 4, the deceased non-party 5, and the deceased non-party 6 (hereinafter referred to as "the deceased") as follows:

(4) The number of non-party 1 (2) Dong-ro 1, Yeongdeungpo-gu, Seoul (1 omitted), 586 Do-ro 1,27 Do-ro 2 (1) Dong-ro 586 Do-ro 2,806 (2) Dong-ro 3 omitted), 1,203 48 Ga-dong 3, 720 9 Ga-dong 944 (1) Dong-si 642 (2) Dong-si 1,154 8 (2) Dong-si 1,154 45 Ga-dong 2788 (2) Dong-si 1,47 47 Ga-dong 1,5784 Ga-dong 1,475 (1) Dong-si 2,471,75 Ga-dong 1,775 (7) Dong-si 1,475 (17) Dong-dong 1,577884)

○ 10 pages 10 2 to 5 are as follows.

“A) Each of the allocated farmland in this case is farmland cultivated by the deceased, who is the plaintiffs' prior owner of the farmland after the tidal bank, the New Construction Corporation, the Central Land Administration Agency, the farmland management agency to which the land belongs, etc., under a small contract on the corresponding part.

B) As the Deceased died, the Plaintiffs and the Intervenor 1 succeeded to the property or agreed on the division of inherited property. The final inheritance relationship is as indicated in the corresponding part of the “Shares of the Plaintiffs and the Intervenor 1 succeeded to, and the “Shares” in the attached Table 2 and the “Shares” in the attached Table 1 calculation table (hereinafter collectively referred to as the “Plaintiffs”). Each of the instant allocated farmland was modified by the lot number, land category, size, etc., as indicated in the attached Table 4, which are the current cadastral map, following the process of division and merger. The detailed details are as listed in the attached Table 3 real estate list.

In the 11th, 9, and 10th, the “litigation for the registration of ownership transfer due to the completion of reimbursement” is the “litigation for the registration of ownership transfer due to the completion of reimbursement against the deceased at the same time as the repayment is received.”

○○ Heading 11 and heading 5 (No. 65Na251) read “each of them was dismissed” (No. 65Na251; hereinafter “the first remand judgment”).

○○ number 11 Ha and 5 Ha and 4 5 Ha and the Yeongdeungpo-gu Seoul Metropolitan Government (number 20 omitted) (hereinafter referred to as “Gu-dong (number 20 omitted) land”) are “Seoul Metropolitan Government-dong (number 8 omitted) land” and “Seoul Metropolitan City-dong (number 8 omitted) land (number 8 omitted) 584 Ha and Dong-dong (number 8 omitted).”

○○ 11 and 3 others, “65Na251” shall be considered as “the first case before remanding.”

In the 12th chapter 12, the term "former Enforcement Rule of the Farmland Reform Act (Enforcement Date, April 28, 1950)" is "Enforcement Rule of the former Farmland Reform Act (Enforcement Rule, enacted and implemented by the Ordinance of the Ministry of Agriculture and Forestry No. 18, April 28, 1950; hereinafter "Enforcement Rule of the former Farmland Reform Act")".

○○ 12, 7 pages 12, “Reversaled and remanded (66Da900)” was reversed and remanded (66Da900, hereinafter “the first remanded judgment”).

In the 13th page 13, the phrase “scaming back (68Da880)” was reversed and remanded (68Da880, hereinafter “second remanded judgment”) to “scam back.”

○ 13, 10 to 4, as follows:

“The first remand judgment of the Supreme Court rendered on April 30, 1973 that the deceased appealed to the Supreme Court, which held that the farmland distribution had become final and conclusive prior to the enforcement of the Enforcement Rule of the Farmland Reform Act was unlawful. The second remand judgment of the Supreme Court is bound by the lower court as well as the lower court as to the instant case, and the second remand judgment of the Seoul High Court is not to have determined that the farmland distribution could be legitimate prior to the enforcement of the Enforcement Rule of the said Act. The second remand judgment of the Seoul High Court was just and it was to have the same purport as the judgment of the first remand judgment of the Seoul High Court 68Na1943 was judged to have been bound by the judgment of the deceased (71Da1884) and was thus dismissed (hereinafter the above Seoul High Court 68Na1943) and became final and conclusive (hereinafter referred to as the “related civil lawsuit of the deceased”) by the deceased’s final and conclusive judgment of the Seoul High Court 68Na1943”

Pursuant to Section 17, each of the instant farmland distributed in collusion with the deceased Nonparty 1, etc., “each of the instant farmland distributed” shall be deemed to be “each of the instant farmland distributed.”

○ The 17th page 5 to 6th page “this case’s lawsuit” is the “relevant civil litigation instituted by the deceased”.

The judgment of the Seoul Central District Court Decision 2009 Inventory 3, 6, and 9 (Joint) was finalized on December 7, 201 due to the prosecutor’s failure to file an appeal. The judgment of the Seoul Central District Court Decision 2009 Inventory 3, 6, and 9 (Joint) was referred to as “the judgment of the criminal review of this case.”

○ From 18 to 19 pages 18, 5 to 19 are as follows.

G. Filing a suit for review by the Deceased

1) On January 4, 2012, the deceased’s successors (part of the deceased’s successors are the same persons as the plaintiffs of this case) filed a lawsuit for review of the civil final judgment of this case with the Seoul High Court (No. 2012J 75). Accordingly, the Seoul High Court dismissed the claim for review on the grounds that the grounds for retrial are not recognized on June 12, 2013, and the above inheritors appealed. However, the Supreme Court rendered a judgment dismissing the appeal on December 23, 2015, and the said judgment on the civil final judgment of this case (hereinafter “the first civil new judgment of this case”) became final and conclusive around that time.

2) After July 30, 2018, the heirs of the above deceased filed a lawsuit for review of the civil final judgment in the Seoul High Court (2018Reduna510). However, the Seoul High Court rendered a judgment dismissing the lawsuit on the grounds that the grounds for review are not recognized on June 14, 2019. While the above inheritors appealed, the Supreme Court rendered a judgment dismissing the appeal on November 14, 2019, the above new judgment on the civil final judgment in the instant case (hereinafter “the second new judgment on the civil judgment in the instant case”) became final and conclusive around that time.

3) Meanwhile, the deceased non-party 3 filed a lawsuit seeking ownership transfer registration against the non-party 1, Dong-dong Seoul Metropolitan Government (number 23 omitted) 950 square meters prior to the above lawsuit filed by the deceased non-party 1, and the deceased non-party 3 filed a lawsuit claiming ownership transfer registration against the defendant in the criminal proceedings against the deceased non-party 2, etc. The deceased non-party 3 did not appear to have obtained ownership transfer registration by manipulating the cause of the above farmland in collusion with other plaintiffs, and the plaintiff failed to obtain ownership transfer registration from the defendant 1, 10,210 square meters among the land owned by the defendant 1, the defendant's non-party 3 was found guilty on the ground that the non-party 1 and the non-party 3's judgment against the non-party 1, which became final and conclusive on November 21, 1974 (Seoul High Court Decision 69Na172, 213). The judgment dismissing the above non-party 2's appeal to the above non-party 1, which was dismissed.

“The grounds for recognition” of page 19, page 2 through 5 is added to “the respective descriptions of evidence of Category A”.

2. Summary of the parties' arguments

A. The plaintiffs

1) The Defendant committed the following illegal acts against the deceased, who is a receiver of each of the distributed farmland of this case.

A) A public official belonging to the Defendant (excluding the judges) refused to receive reimbursement payment to the Deceased on or around 1953, and interfered with the cultivation of the Deceased on or around 1961 due to the creation of a simple house. ③ In the lower court’s civil litigation, the Deceased filed a civil lawsuit against the Deceased, and detained the deceased Nonparty 2, etc. under the special name of the President in 1970, and detained the deceased Nonparty 2, etc., and detained the deceased Nonparty 2, etc. on bail before the court’s release on bail. During the investigation process, the deceased Nonparty 3 forced confession by committing various harsh acts during the investigation process, and forced the deceased Nonparty 3 to make a confession during five years, the deceased Nonparty 2, Nonparty 5, Nonparty 4, and Nonparty 6 to undergo a trial for about nine years, and the deceased was unable to exercise the right to receive reimbursement of the deceased’s farmland by submitting fabricated evidence to the deceased Nonparty 2, etc., and thus making it impossible for the deceased to exercise the right to receive reimbursement of the deceased’s farmland or its distribution.

B) Since the judges belonging to the defendant committed farmland distribution before the enactment of the former Enforcement Rule of the Farmland Reform Act with respect to this case in the course of the defendant's series of illegal acts, the court below which accepted the claim for ownership transfer registration against the defendant on the ground that the farmland distribution to the deceased was null and void, sentenced the court below's judgment that rejected the plaintiff's claim in accordance with the purport of the judgment on the reversal and return of the farmland. However, the court below rendered several rulings that ① most of the defendant's farmland distribution was made before the enactment of the former Enforcement Rule of the Farmland Reform Act, ② some of the Supreme Court Justices who rendered the first remand judgment made several rulings to the effect that farmland distribution under the former Enforcement Decree of the Farmland Reform Act is valid in other cases, ③ the judgment on the first remand and the judgment on the appeal to the civil judgment of this case constitutes a tort in violation of Article 7 (1) 3 of the former Court Organization Act (wholly amended by Act No. 248 of Jan. 25, 1973).

2) Due to the above tort committed by the Defendant, the Plaintiffs, the inheritors of the deceased, acquired the ownership of each of the instant allocated farmland on January 7, 2013, in which the equivalent value of repayment was fully paid, but the said ownership was lost due to the Defendant’s impossibility of performing the obligation to transfer the ownership of each of the instant allocated farmland; or ② the Plaintiffs, the inheritors of the deceased or the deceased, were unable to pay the redemption payment by December 31, 1998, which led to the failure of the Plaintiffs to pay the redemption payment by December 31, 1998, which was enacted by Act No. 4817 of Dec. 22, 1994 and enforced from January 1, 1996; hereinafter “former Addenda to the Farmland Act”) under the Addenda to the Farmland Act (hereinafter “former Addenda to the Farmland Act”).

3) Therefore, the Defendant is obligated to compensate the Plaintiffs for damages due to the tort, and as of January 1, 2013, the amount according to the ratio of each share of the Plaintiffs among the market price equivalent to the current status of each of the distribution farmland as of January 1, 2013, which was most adjacent to the Plaintiffs’ ownership of each of the distribution farmland of this case, as of January 7, 2013, the Defendant is obligated to pay the amount and damages for delay as to each of the above amounts, which are the amount according to the ratio of each share of the Plaintiffs, among the values according to the standards for the entire response to each of the distribution farmland of this case as of December 31, 1998, as of December 31, 198.

B. Defendant

1) The defendant did not commit a tort like the plaintiffs' assertion.

2) As long as the judgment of the civil judgment of this case was finally confirmed to be lawful and effective by the judgment of the first and second civil judgments, etc. of this case, the deceased did not have the status of lawful distribution of each of the distributed farmland of this case according to the judgment of the civil judgment of this case.

3) Even if the facts of the Defendant’s tort and the damages suffered by the Plaintiffs are acknowledged, the Plaintiffs, who are the deceased or their inheritors, were unable to have ownership of each of the instant allocated farmland transferred according to the instant civil final judgment, and thus, there is no proximate causation between the Defendant’s tort and the damages suffered by the Plaintiffs.

4) Even if the Defendant’s liability to compensate for damages was acknowledged, five years have passed since the truth-finding decision, which was conducted by the Committee on the Settlement of History, was conducted on July 8, 2008, and six months have passed since December 7, 2011, which was the date when the judgment of the instant criminal case became final and conclusive, was filed on June 10, 201, and thus, the Plaintiffs’ damage claim expired due to the expiration of the statute of limitations.

3. Occurrence of liability for damages;

A. Whether the liability for damages occurred

1) Existence of tort

A) Whether a judge's tort exists

(1) Even if a judge’s error does not comply with the provisions of law, it does not result in the State’s liability for damages, which is an unlawful act as referred to in Article 2(1) of the State Compensation Act, and it is reasonable to interpret that, in order to recognize the State’s liability for damages, there should be special circumstances to recognize that the judge clearly exercised the authority granted by the judge, such as where the judge held a trial with unlawful or unreasonable purposes or where the law requires compliance with the judge’s performance of duties (see Supreme Court Decision 9Da24218, Jul. 11, 2003).

(2) However, considering the above evidence and the purport of oral argument, the Supreme Court en banc Decision 63Da259 Decided June 20, 1963 stated to the effect that "it is true that the court of final appeal issued a certificate of redemption retroactively as of the enforcement date of the former Enforcement Decree of the Farmland Reform Act," although it is difficult to conclude that the court of final appeal did not have a different purpose from the judgment of the court of final appeal since it is hard to conclude that the court of final appeal had a different purpose from the judgment of the court of final appeal from the judgment of the court of final appeal as to the above 197 Supreme Court en banc Decision was delivered prior to the first judgment (refer to the evidence No. 21) because it is hard to conclude that the first judgment of the court of final appeal was inconsistent with the above Supreme Court en banc Decision 2000 Decided June 20, 1963, and thus, it is difficult to conclude that the court of final appeal and the appellate court of final judgment were remanded to the extent of inconsistency with the above Supreme Court en banc Decision No. 2000000 Decided.

(3) Therefore, this part of the plaintiffs' assertion is without merit.

B) Whether public officials belonging to the defendant (excluding judges) committed a tort

1. As seen earlier in the basic facts, public officials belonging to the Defendant (excluding judges) were legally distributed the farmland of this case from the Defendant. However, the Defendant unilaterally refused to receive redeemable farmland after May 1953, and created a Dong-dong Corporation on the land of this case including each of the farmland of this case from August 1961. ② In the relevant civil litigation instituted against the Defendant, part of the civil litigation related to the land of this case becomes final and conclusive as against the Defendant, and in the relevant civil litigation instituted by the Deceased, the judgment recognizing the right to claim the transfer registration on the ground of repayment on the condition of repayment in advance payment on each of the distributed farmland of this case, including the deceased Nonparty 2, etc., and the Defendant was partly sentenced to the judgment recognizing the right to claim the transfer registration on the ground of the deceased’s unlawful act by abusing the investigative authority for the purpose of giving up his right to the distributed farmland of this case, and the Defendant did not legally withdraw the rights to the deceased’s unlawful act by means of assault or systematic abuse of public authority, and forced the Plaintiffs to withdraw the remaining criminal charges or unlawful act.

2) Occurrence of damages

A) A person who has completed the repayment of farmland price shall acquire ownership of the distributed farmland completely under the former Farmland Reform Act (see, e.g., Supreme Court Decision 2007Da43856, Oct. 11, 2007). However, it is merely a conditional right to acquire ownership upon the completion of the repayment of farmland, i.e., a conditional right to acquire ownership until the distribution of farmland is repaid (see, e.g., Supreme Court Decision 79Nu295, May 27, 1980). The disposition of farmland distribution cannot be deemed as an administrative disposition, unless it is denied by legitimate procedure. It is irrelevant to whether the distribution of farmland actually occupies the farmland, and thus, it is valid for the distribution of farmland even if the distributor delays the repayment for a long time, but merely it remains in the state where the repayment has not been completed, and it cannot be deemed that the right of the distributor becomes extinct due to the expiration of the statute of limitations (see, e., Supreme Court Decision 2003Da637, Dec. 16, 193).

The deceased received distribution of each of the farmland of this case from the defendant as seen above. According to the above legal principles, unless the defendant's farmland distribution disposition is denied due to the cancellation of due process, etc., the right of distribution, which is the right to complete repayment of each of the farmland of this case and to acquire ownership, was the right to acquire ownership, at any time under the former Farmland Reform Act and the former Farmland Reform Act (repealed by Act No. 4817, Dec. 22, 1994; hereinafter "former Special Act").

B) Article 2 of the Addenda of the former Farmland Act and the former Special Assistance Act are repealed. Article 3 of the Addenda of the former Farmland Act provides that “The repayment, registration, etc. of farmland for distributed farmland at the time of the enforcement of this Act and the former Special Assistance Act shall be completed within three years from the enforcement date of this Act.” According to the above provision, there is no provision on the repayment of farmland due to the lapse of three years from the enforcement date of the former Farmland Act and there is no provision on the payment of farmland, and thereafter, even if the farmland is repaid, it is impossible to acquire ownership under the provisions of the former Farmland Reform Act and the former Special Assistance Act. Thus, the farmland payment, which is the procedure for distribution, is no longer possible for the farmland payment of farmland whose repayment and registration has not been completed within three years from the enforcement date of the former Farmland Act (see, e.g., Supreme Court Decision 2006Da79698, May 28, 2009).

According to the above legal principles, while the plaintiffs, who are the inheritors of the deceased and the deceased, did not complete the repayment and registration of farmland by December 31, 1998, within three years from the date of the enforcement of the former Farmland Act, due to the illegal act in this case by the defendant, they could no longer acquire ownership of each of the distributed farmland in this case under the former Farmland Reform Act and the former Special Assistance Act even if the repayment of farmland was completed, and it is reasonable to view that the plaintiffs as the plaintiffs lost their right to distribute the allocated farmland in this case due to the illegal act in this case by the defendant on January 1, 1999.

[망 소외 5가 피고로부터 서울 구로동 (지번 20 생략) 전 584평(이하 ‘구로동 (지번 20 생략) 토지’라 한다)을 분배받았는지 여부에 관하여 본다. 앞서 본 바와 같이 당초 망인들이 제기한 관련 민사소송의 제1심판결( 서울민사지방법원 64가3353호 )에 의하면 망 소외 5가 피고로부터 분배받았다고 인정된 토지는 ‘구로동 (지번 20 생략) 토지’가 아니라 ‘구로동 (지번 8 생략) 토지’이고(갑 제7호증의 1, 17면 참조), 과거사정리위원회의 진실규명결정도 망 소외 5가 ‘구로동 (지번 8 생략) 토지’를 분배받았다고 인정하였다(갑 제6호증, 25, 90면 참조). 그러나 ① 당초 구 농지개혁법 시행령 제32조 에 따른 종람공고 당시 그 실제 평수나 지번 표시 등에 있어 등기부 및 토지대장 등 공부의 기재와 일부 부합되지 않는 것도 있었으나 측량 등에 의하여 이를 특정함이 없이 ‘OO평 중 O평’ 등과 같은 표시방법으로 분배농지를 확정하였다가, 분배농지에 관한 농지소표 등 농지분배 서류가 한국전쟁 중 소실되자 관할 영등포구청이 그 전에 시행하였던 농지분배에 관한 실지조사를 하는 한편 위 조사결과에 맞추어 토지 일대를 측량하고 1954. 3. 15.경 당시 지번 및 평수로 분할하여 이에 따라 농지소표를 만든 후 상환대장, 지적도를 만들고, 농지분배 여부 등에 대한 확인절차와 농지위원회의 심의 등을 거쳐 농지분배 서류를 복원한 점, ② 서울특별시 영등포구청장은 1954.(단기 4287년) 3. 15. 구로동 (지번 20 생략) 토지에 관하여 망 소외 5가 분할받는다는 내용의 토지분할신고서(갑 제72호증 참조)에 기초하여 서울 영등포구 구로동 (지번 21 생략) 전 992평으로부터 구로동 (지번 20 생략) 토지를 분할한 것으로 보이는데, 위 토지분할신고서에는 망 소외 5의 토지 지번이 당초 ‘(지번 8 생략)’으로 기재되어 있었다가 ‘(지번 20 생략)’으로 수정되었고, 이에 따라 구로동 (지번 20 생략) 토지에 관한 구 토지대장(갑 제71호증의 2 참조)에 기재되어 있던 토지 지번도 위와 같이 변경된 것으로 보이는 점, ③ 망 소외 5는 서울민사지방법원 67가14188호 로 피고를 상대로 ‘구로동 (지번 22 생략) 대지 중 도면 표시 부분 584평에 관한 소유권이전등기절차의 이행청구의 소’를 제기하였고, 위 법원이 망 소외 5의 청구취지상 위 도면 표시 부분이 특정되어 있지 않고, 피고에 대한 상환곡의 수량이 기재되어 있지 않아 망 소외 5에 대하여 보정명령을 하였음에도 망 소외 5가 이에 불응하자 위 소를 각하하는 판결(갑 제19호증 참조)을 선고하였는데, 망 소외 5는 위 소송에서 청구의 목적물의 지번 등을 특정하지는 아니하였으나 그 면적을 ‘584평’으로 명시하여 기재한 점 등에 비추어 보면, 망 소외 5가 피고로부터 분배받은 농지의 지번은 ‘(지번 8 생략)’이 아닌 ‘(지번 20 생략)’이라고 보이고, 당초 서울민사지방법원 64가3353호 판결 에서 망 소외 5가 분배받은 것으로 인정된 구로동 (지번 8 생략) 토지는 구로동 (지번 20 생략) 토지의 단순한 오기에 불과하였다고 보이므로, 망 소외 5가 피고로부터 구로동 (지번 20 생략) 토지를 분배받은 사실을 인정할 수 주2) 있다 ]

3) Whether a proximate causal relationship exists between the tort committed by public officials (excluding judges) belonging to the defendant and damages

A) The civil final and conclusive judgment of this case, which is the final and conclusive judgment of the civil lawsuit brought by the deceased, shall be limited to the conclusion that the farmland distribution disposition of this case against the deceased was null and void, and dismissed the plaintiffs' claim for the registration of ownership transfer based on the repayment completion against the defendant. However, res judicata of the final and conclusive judgment shall, in principle, be limited to the conclusion of the judgment on the existence of legal relations contained in the text of the judgment (see Supreme Court Decision 70Da1759, Sept. 29, 1970, etc.). Thus, res judicata of the civil final and conclusive judgment of this case shall be limited to the effect that the deceased does not have the right to claim ownership transfer registration based on the completion of the repayment against the defendant. Furthermore, it is difficult to view that the defendant's farmland distribution disposition against the deceased is null and void. Accordingly, the deceased shall have the right to distribute each of the distributed farmland of this case, notwithstanding the civil final and conclusive judgment of this case.

B) Furthermore, the legal relationship that is the subject matter of res judicata becomes final and conclusive is only the legal relationship as at the date of the date of the closing of argument in the fact-finding court (see Supreme Court Decision 2002Da64148, May 13, 2003, etc.). As such, the Deceased may acquire ownership of each of the allocated farmland of this case under the former Farmland Reform Act and the former Special Assistance Act by completing the repayment payment to the Defendant after May 19, 1971, which is the date of the closing of argument in the civil final and conclusive judgment of this case, and can be said to have been implemented by the Defendant based on the above ownership.

C) Nevertheless, due to a series of illegal acts, such as conducting an illegal investigation against the deceased non-party 2, etc. before and after the judgment of the civil judgment of this case, the defendant still made it difficult for the deceased and their inheritors to exercise the right to distribute the right, which is the right to acquire ownership of each of the allocated farmland of this case, through the repayment of the repayment payment, or making it difficult to expect such exercise of the right to exercise the right. Accordingly, as seen earlier, as seen earlier, it is reasonable to view that the deceased suffered damages that would become unable to acquire ownership of each of the allocated farmland of this case under the former Farmland Reform Act and the former Special Assistance Act, even if the payment of farmland was not completed from January 1, 1999, while the payment of farmland was not completed by December 31, 198, which was within three years from the enforcement date of the former Farmland Act.

D) Accordingly, the Defendant’s assertion that there is no proximate causal relationship between the Defendant’s tort and the damage to the Plaintiffs, as the Plaintiffs, who were the Deceaseds or their inheritors, were unable to acquire ownership of each of the instant allocated farmland according to the instant civil final judgment, is rejected.

4) Sub-determination

Ultimately, it is reasonable to view that the deceased or his heir, as seen earlier, suffered damage to the right to acquire ownership on the condition of repayment of each of the allocated farmland of this case, that is, the right to acquire ownership under the condition of repayment, due to the Defendant’s tort. Therefore, the Defendant is obliged to compensate the above damages suffered by the Plaintiffs due to the tort committed by the public officials under his jurisdiction in relation to the execution of his duties in accordance with the former part of Article 2(1) of

B. Judgment on the defendant's defense for the completion of extinctive prescription

1) Relevant legal principles

According to Article 8 of the State Compensation Act, Articles 166(1) and 766(1) and (2) of the Civil Act, Article 96(2) and (1) of the National Finance Act / [Article 96(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 4102, Mar. 31, 1989; hereinafter the same shall apply) / [Article 96(2) and (1) of the former Budget and Accounts Act (wholly amended by Act No. 8050, Oct. 4, 2006; hereinafter the same shall apply] of the State Compensation Act, with respect to the State compensation claim, the victim or his/her legal representative becomes aware of the damage and the perpetrator (Subjective starting point under Articles 166(1) and 766(1) of the Civil Act) / [Article 166(1) and 766(2) of the Civil Act] of the National Finance Act shall apply in principle for five years from the date he/she committed a tort

However, on August 30, 2018, the Constitutional Court rendered a decision that “The part applicable to the cases under Articles 2(1)3 and 2(1)4 of the former Bankruptcy Adjustment Act (amended by Act No. 12014, Apr. 14, 2014; hereinafter “Special Act”) goes against the Constitution because it was out of the need to guarantee the State’s right to claim compensation for the type of the above case without any legal stability through the extinctive prescription system and any other reasonable reason, and it violated the Constitution by deviating from the limit of the legislative formation” (see Constitutional Court Decision 2014Hun-Ba8, 2014; 204Hun-Ba16, 204; 2016Hun-Ba46, 2016; 204, 20465, 2046, 2046, 2016, 204).”

The effect of the decision of unconstitutionality of the Constitutional Court is not only the case in which the Constitutional Court has made a request for adjudication on the constitutionality of the same kind, or the case in which the request for adjudication on the constitutionality of the same kind has been made to the court before the decision on the constitutionality of the Constitutional Court has been made, but it does not extend to all the general cases in which the law or the provision of the law is the premise of the decision, and the court

Therefore, the effect of the decision of unconstitutionality of this case extends to cases where a lawsuit claiming compensation for damages caused by a public official’s unlawful performance of duties is pending in the court at the time when the decision of unconstitutionality is made. As such, Articles 166(1) and 766(2) of the Civil Act does not apply to the right to claim compensation for damages, and Article 96(2) of the National Finance Act (Article 96(2) of the former Budget and Accounts Act (Article 96(2) of the former Budget and Accounts Act), which provides for the period of extinctive prescription for the right to payment of money to the State five years, is also subject to the premise of such objective starting point of time (see, e.g., Supreme Court Decisions 2018Da23686, Nov. 14, 2019; 2012Da36565, Dec. 26, 2019).

2) Determination

A) Examining the above facts in light of the above legal principles, it is reasonable to view that the claim for damages caused by the plaintiffs' tort falls under the claim for state compensation for property damage caused by public officials' unlawful performance of official duties in the serious violation of human rights or manipulation of acts under Article 2(1)4 of the previous Bankruptcy Adjustment Act. Accordingly, since the effect of the decision of unconstitutionality of this case is also in this case, as to the claim for damages caused by the plaintiffs' tort of this case, the long-term extinctive prescription period based on the objective starting point of time under Articles 166(1) and 766(2) of the Civil Act is not applicable to the claim for damages caused by the plaintiffs' tort of this case, and on the premise of such objective starting point of time, Article 96(2) of the National Finance Act or Article 96(2) of the former Budget and Accounts Act, which provides for the period of extinctive prescription period for the right to payment of money to the State, is excluded from its application. It is only the subjective starting point of time

B) However, in the case where a conviction was rendered among the “serious human rights infringement cases and manipulations suspicion cases,” as provided in Article 2(1)4 of the previous Act as in the instant case, there is a special circumstance that the judgment of conviction exists, and it is reasonable to view that the claimant can recognize the actual and specific facts regarding the elements of tort, such as the occurrence of damages, the existence of illegal harmful act, and proximate causal relation between the harmful act and the occurrence of damages, after the judgment of conviction was revoked by a retrial. Thus, if the victim claims state compensation within three years from the date when the judgment of conviction became final and conclusive (not guilty judgment), the above short-term statute of limitations can be deemed as having

C) As seen earlier, since the instant criminal review judgment which acquitted the deceased non-party 2, etc. through the criminal review process became final and conclusive on December 7, 2011, the Plaintiffs were deemed to have known of the damages and the perpetrator arising from the instant tort only during that time (the deceased non-party 1 is not subject to the judgment of the criminal review of this case. However, since the judgment of conviction against the deceased non-party 2, etc. was a criminal fact that the deceased non-party 2, etc. committed a crime in collusion with the deceased non-party 1, it shall be deemed that the deceased non-party 1 also constitutes the victim of the "serious violation of human rights" as prescribed in Article 2 (1) 4 of the former Act on the Settlement of History, and thus, the deceased non-party 1 and his successor as the deceased non-party 1’s heir constituted the victim (the deceased non-party 1 was confirmed as the victim at the time when the judgment of the criminal review of this case became final and conclusive). Accordingly, the Plaintiffs raised the suit within the period of this case 2013 years.

3) Sub-committee

Therefore, the defendant's defense is without merit.

4. Scope of damages.

A. Calculation of damages

1) Property damage caused by a tort refers to the difference between the property disadvantage caused by an illegal harmful act, that is, the property condition that would have existed without the tort and the property condition difference caused by the tort (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992). Meanwhile, the base point for calculating the amount of damages caused by the tort is, in principle, the time when the tort was committed. However, in cases where there is a time interval between the time when the tort was committed and the time when the result occurred, the point at which the tort was completed, namely, when the damage occurred, the point at which the amount of damages would be the basis for calculating the amount of damages (see, e.g., Supreme Court Decision 2013Da65710, Jul. 10

2) As seen earlier, the Plaintiffs, who were the deceased or their inheritors, would have acquired ownership in the previous state at the time of distribution upon the completion of the repayment of each of the allocated farmland of this case without the Defendant’s tort. However, the damages incurred by the Defendant’s tort, which caused loss of the right to share ownership, due to the Defendant’s tort. The above damages were realized on January 1, 1999 when the repayment of the redemption was no longer possible after the lapse of December 31, 1998, which was set forth in Article 3 of the Addenda of the former Farmland Act, when the payment of the redemption of the redemption of each of the farmland of this case was completed (the Plaintiffs asserted that the damages occurred on January 7, 2013, when the repayment of the redemption of the redemption of each of the farmland of this case was completed. However, the Plaintiffs asserted that the above payment of the farmland of this case could not be seen as having been made at the time of the payment of each of the above farmland of this case.

Furthermore, comprehensively taking account of the statements in Gap evidence Nos. 23 through 25, the appraisal results of the first instance trial appraiser Nos. 7 and the purport of the whole pleadings, the amount equivalent to the market price calculated based on the previous market price at the time of distributing each of the distributed farmland of this case at the time of January 1, 1998, which was the most nearest to the actual result of the damage, as of January 1, 1998, is equal to the amount indicated in the "market price based on the previous lot number classification as of December 31, 1998" in the calculation table of attached Table 1 (the specific calculation details are as shown in attached Table 5 market price calculation table). When calculating the share ratio of the plaintiffs, each of the plaintiffs' damages are as stated in the "request amount" column in attached Table 1 (the damages of this case due to the tort of this case shall be deducted from the amount equivalent to the market price calculated based on the previous market price as at the time of distributing each of the distributed farmland of this case, or there shall be no specific deduction amount for each of the above market price.

B. Sub-committee

Therefore, the Defendant is obligated to pay damages for delay calculated at the annual interest rate of 5% as stipulated in the Civil Act from January 1, 1999 to February 7, 2020, which is the date of the judgment that it is deemed reasonable for the Defendant to dispute over the existence and scope of the obligation to perform as to each of the aforementioned amounts as stated in the “claim” column of attached Table 1 as damages for the tort of this case, and each of the above amounts, to each of the Plaintiffs as stated in the “Plaintiff” column of attached Table 1 of the same Table (Presidential Decree No. 29768, May 21, 2019), Article 3(1) of the Addenda of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 29768, May 21, 2019) and Article 3(1) main text of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 29768, May 21, 2019).

5. Conclusion

Therefore, the plaintiffs' claims shall be accepted in its entirety with due grounds, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the defendant shall be ordered to pay the above amount. It is so decided as per Disposition.

(attached Form omitted)

Judges Kim Sang-woo (Presiding Judge)

(1) In the same purport, the Plaintiffs’ assertion, which is premised on the premise that the Deceased acquired ownership of each of the instant allocated farmland immediately following the Defendant’s disposition of farmland distribution, is no longer examined.

2) According to the result of each appraisal by the first instance trial appraiser Nonparty 7 and Nonparty 8 and the purport of the entire pleadings, the number, land category, and area of the old-dong (number 20 omitted) land was changed as indicated in the last reference map of the attached Form 4, which is the current cadastral map, after the process of division and consolidation. The detailed details are as indicated in the attached Table 3’s real estate list No. 19.