In a case where: (a) the bereaved families of civilian victims, including “A, killed by the military and the police during the suppression of the so-called net incident that occurred immediately after the establishment of the government; (b) claimed damages against the State at the time seven years and nine months have elapsed since the date of the truth-finding decision by the Committee for the Settlement of History for Truth and Reconciliation (hereinafter “Committee for Settlement of History”); and (c) the State asserted that the claim for damages expired due to the expiration of the statute of limitations, the case holding that

In a case where civilian victims, including Gap, killed by the military and police after the establishment of the government, filed a claim for damages against the State at the expiration of seven years and nine months from the date of truth-finding by the Korean War Mediation Commission for Truth and Reconciliation (hereinafter “Korea War Mediation Commission”), and the State asserted that the claim for damages had expired due to the expiration of the statute of limitations, the case held that the State’s assertion for the expiration of the statute of limitations to the bereaved family constitutes an abuse of rights against the principle of good faith, on the ground that it is reasonable to deem that there were special circumstances where the State exercises its rights within a considerable period of time based on the above determination, at least the State’s exercise of rights within the reasonable period of time, would not claim the extinguishment of rights due to the expiration of the statute of limitations; however, the “reasonable period” where the bereaved family members exercise their rights to prevent the lapse of the statute of limitations defense is limited to a short period of time corresponding to the suspension of prescription under the Civil Act, barring any special circumstance, and even if it is extremely inevitable, the statute of limitations expires.

Article 2(1) of the State Compensation Act, Article 32 of the former Accounting Act (repealed by Act No. 217, Sept. 24, 1951; Article 82 of the Act) (see current Article 96 of the National Finance Act); Articles 750 and 766(1) of the Civil Act; Article 2(1)3 and 26 of the Framework Act on the Settlement of History for Truth and Reconciliation

Attached Form 1 same as the entry in the list of plaintiffs (Attorney Satellite-ok, Counsel for the plaintiff-appellant)

Korea

Gwangju District Court Decision 2016Gahap10996 decided July 12, 2017

March 16, 2018

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiffs the money recorded in the "amount claimed after modification" in the "amount claimed after modification" in the "amount claimed by each plaintiff in attached Form 2 and to the amount calculated by the rate of 15% per annum from the day following the day of service of the complaint in this case to the day of full payment (the plaintiff claims that only part of the money recorded in the "amount claimed before modification" in the "amount claimed before modification" in the above table are

1. Basic facts

(a) Occurrence of a civilian sacrifice case in the Gu funeral area;

1) On October 19, 1948, the Army Headquarters established under the Defendant ordered the 14th Army that had been stationed in the area of female water as of October 19, 1948 to move out to Jeju-do for the suppression of Jeju 43 Incident. On the contrary, approximately 2,00 military personnel belonging to the said 14 joint and several groups, leading to the disturbance of the said 14th century.

2) On October 22, 1948, the government established the earth and sand headquarters in Gwangju, and ordered the suppression group, such as the Army heading 2 through 6, 12, and 15 jointly and severally, to recall the female trees. On October 27, 1948, the suppression group recovered the female trees.

3) Since then, the suppression group, focusing on the Dogsan-gun, was engaged in the anti-presidential operations. From the end of October 1948 to the end of July 1949, many civilians were killed in the process of searching for the cooperation of the anti-military forces and the persons suspected of benefiting from the king-gun of the Magnam-gun from the end of October 1948 and the police from the end of July 1949 (hereinafter “former case of civilian sacrifice in the area of the same Gu”).

B. The truth-finding findings by the Korean Film Commission for truth and reconciliation

On July 8, 2008, the Committee for the Settlement of History for Truth and Reconciliation under the Defendant (hereinafter “The Committee for the Settlement of History”) confirmed the deceased’s (hereinafter “the deceased”) as the victim of the former case’s sacrifice in the amount of claims filed by each Plaintiff and the amount of appeal on July 8, 2008 (hereinafter “the truth-finding decision of this case”).

C. The relationship between the plaintiffs and the deceased

The plaintiffs shall be bereaved family members of each deceased.

[Ground for recognition] Unsatisfy, Gap evidence No. 26, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiffs' assertion

Since the military personnel and the police of the defendant murdered the deceased without due process without any justifiable reason, the defendant is responsible for compensating the respective money and damages for delay as stated in the claim as consolation money for mental suffering suffered by the deceased and their bereaved family members as a supervisor.

B. The defendant's argument

1) The truth-finding findings of the instant case and the evidence submitted by the Plaintiffs cannot be readily concluded that the deceased was sacrificed by the Defendant’s military personnel and the police’s tort.

2) Even if the Defendant’s tort was established, the instant lawsuit was filed five years after the deceased’s death, and thus, the Plaintiffs’ claim for damages expired by prescription.

3. Determination

A. Order of determination

Even if the defendant's tort is recognized, if the plaintiffs' right to claim damages expires by prescription, the plaintiffs cannot claim damages to the defendant any longer, so the plaintiffs are first judged as to the expiration of extinctive prescription.

(b) Completion of extinctive prescription;

The right to claim damages against the State on the ground of tort is extinguished by prescription if it is not exercised for five years from the date of tort (Article 32 of the former Accounting Act before it was repealed by Act No. 42 of Apr. 7, 1921, and repealed by Act No. 217 of Sept. 24, 1951). The fact that the plaintiffs' action in this case was filed on April 29, 201 after five years from the point of time from Oct. 10, 1948 to July 1949, which was more than five years from the point of time from the point of time of the action in this case, is apparent in the record, and the plaintiffs' right to claim damages has expired before the filing of the lawsuit in this case, barring any special circumstances.

C. Abuse of rights and the expiration of a reasonable period of time

1) The plaintiffs' assertion

The Defendant’s assertion that the extinctive prescription has expired without notifying the Plaintiffs of the period for filing an action or failing to perform his/her duty to enact a law specifying the said period, based on the findings of the fact-finding of the instant case, that the Defendant did not invoke the benefits of extinctive prescription against the principle of good faith or constitutes an abuse of rights.

2) Determination

A) The exercise of the right of defense on the ground of extinctive prescription is governed by the principles of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, the obligor has made the right holder trusted it after the completion of extinctive prescription, and if the obligor exercised his right within a considerable period of time that can expect the exercise of right, the obligor’s assertion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith (see Supreme Court en banc Decision 2012Da202819, May 16, 2013, etc.).

As seen earlier, it is recognized that the Defendant’s past history conciliation committee established under the Defendant’s control recognized the truth-finding process of the instant case that confirmed the deceased as a victim upon receiving an application for truth-finding to verify the truth. As such, it is reasonable to deem that there is a special circumstance that the Plaintiffs, who are the bereaved family members of the deceased, exercise their rights within a considerable period of time based on the above decision, would not claim the extinguishment of rights due to the completion of extinctive prescription, and therefore, it is reasonable to deem that the Defendant’s assertion against the Plaintiffs during the statute of limitations constitutes abuse of rights against the principle of trust and good faith.

B) However, even in a case where an obligor granted a trust that does not use the benefit of extinctive prescription, an obligee may prevent an obligor from defenseing the extinctive prescription only within a reasonable period from exercising his/her right from the time when such circumstance occurred. Here, whether an obligor exercised his/her right within a reasonable period of time should be determined by comprehensively taking into account the relationship between the obligee and the obligor, the details, motive, and circumstances leading up to the obligor’s act given trust, etc., the purpose and genuine intent of the obligor to achieve through the obligor’s act, and whether there were special circumstances where the obligor had to delay the obligee’s exercise of right. However, denying the validity of the extinctive prescription based on the principle of trust and good faith should be limited to an exceptional restriction on the extinctive prescription system, which takes the ideology of achieving legal stability, remedy for difficulties in proving evidence, and sanction the obligor’s neglect of the exercise of right. Therefore, even where it is inevitable to acknowledge an extension of the period due to a very special circumstance in an individual case, such a period should be limited to a short period of time as provided for in this case.

Therefore, in order to avoid the Defendant’s defense of extinctive prescription, the Plaintiffs should have filed a claim for damages against the Defendant within three years from July 8, 2008, which was the date of the truth-finding decision of the instant case. Since the instant lawsuit was filed only on April 29, 2016, which was seven and nine years passed from the date of the fact-finding decision, the Plaintiffs’ assertion of abuse of rights cannot be accepted (the period of extinctive prescription for the claim for damages caused by tort is stipulated in Article 766 of the Civil Act). As such, it cannot be deemed that the past Bankruptcy Commission should notify the Plaintiffs of the period for filing a lawsuit or that the Defendant has a duty to establish a separate law specifying

C) As to this, the Plaintiffs recommended the Plaintiffs to correct the family relation register on the date of the deceased’s death, etc. while conducting the fact-finding survey of the instant case. Accordingly, the Plaintiffs filed an application for correction of the family relation register on June 12, 2014 and completed correction of the family relation register on November 30, 2015, and accordingly, asserted to the purport that the aforementioned “reasonable period” should be calculated from the completion of correction of the family relation register.

However, the recommendations of the previous Labor Relations Adjustment Committee are merely that “the State needs to take corrective measures against the family relations register through the legal procedure “if the bereaved family members wish,” and the family relations register contains different descriptions from the facts such as the death date of the deceased, it cannot be deemed that there was any legal obstacle to the exercise of the plaintiffs’ right to claim damages against the defendant. Therefore, the plaintiffs’ assertion is without merit.

4. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed due to the lack of merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] Claim Amount by Plaintiff: omitted

Judges Park Byung-il (Presiding Judge) (Presiding Justice)