[Plaintiffs, Appellants] Plaintiff 1 and 22 others (Attorney Kim Jae-yong, Counsel for the plaintiffs)
[Plaintiffs, Appellants and Appellees] Plaintiff 10 and 1 other
[Defendant, Appellee and Appellant] Republic of Korea (Attorney Seo Gyu-yeong and 1 other, Counsel for the defendant)
[Judgment Below] Seoul High Court Decision 2011Na91229 decided May 3, 2012
[Order]
1. A. The part of the judgment below concerning Plaintiff 6 and Plaintiff 7's claim for consolation money for damages caused by obstruction of employment through the preparation and management of a blacklist, etc. is reversed, and this part of the case is remanded to the Seoul High Court.
B. The remainder of the appeal by Plaintiff 6 and Plaintiff 7 is dismissed.
2. The appeals by the remaining plaintiffs and the appeal by the Defendant against Plaintiff 10 and Plaintiff 22 are all dismissed.
3. Of the costs of the appeal, the portion arising between Plaintiff 10, Plaintiff 22 and the Defendant shall be borne by each party respectively, and the portion arising between the remaining plaintiffs (excluding Plaintiff 6, Plaintiff 7, Plaintiff 10, and Plaintiff 22) and the Defendant shall be borne by the said remaining plaintiffs.
[Reasoning]
The grounds of appeal (to the extent that the statements in the supplementary briefs on grounds of appeal, etc., submitted after the expiration of the period for submitting the grounds of appeal supplement the grounds of appeal) are examined.
1. As to the grounds of appeal of the remaining plaintiffs excluding Plaintiff 10 and Plaintiff 22
A. (1) Article 1 of the Act on the Restoration of Honor and Compensation for Persons Related to the Democratization Movement (이하 ‘민주화운동보상법’, hereinafter referred to as the "Democratization Movement Compensation Act") provides, "The purpose of this Act is to promote stability of living and improvement of welfare for persons sacrificed in connection with the democratization movement and their bereaved families by the State restoring their honor and providing compensation, and to contribute to the development of democracy and national harmony." Article 2, Item 1 provides, "The term 'democratization movement' means activities that, resisting authoritarian rule that disturbed the free democratic basic order and infringed upon the fundamental rights of citizens guaranteed by the Constitution on or after March 24, 1964, contributed to the realization of the ideology and values pursued by the Constitution and the establishment of a democratic constitutional order, and restored and enhanced the freedom and rights of citizens." The main text of Item 2 provides, "The term 'person related to the democratization movement' means a person falling under any of the following items who has been deliberated and determined as such by the Committee for the Restoration of Honor and Compensation for Persons Related to the Democratization Movement under Article 4 (hereinafter referred to as the 'Compensation Deliberation Committee')," and lists as eligible persons under each item: "(a) a person who died or went missing in connection with the democratization movement; (b) a person who was injured in connection with the democratization movement; (c) a person who is recognized as having suffered from a disease prescribed by Presidential Decree due to the democratization movement or as having died from its aftereffects; (d) a person who received a conviction, was dismissed from office, or received academic disciplinary action on the grounds of the democratization movement." Article 10, Paragraph 1 provides, "A related person or his/her bereaved family who wishes to receive compensation, medical support funds, or living support funds (hereinafter referred to as 'compensation, etc.') under this Act shall apply in writing to the Committee for the payment of compensation, etc., attaching relevant supporting documents, as prescribed by Presidential Decree." Article 14, Paragraph 1 provides, "An applicant who has been served with the original of the decision on compensation and who wishes to receive compensation, etc. shall, without delay, request the Committee to pay the compensation, etc., attaching a letter of consent to the decision." The Act on the Restoration of Honor and Compensation for Persons Related to the Democratization Movement provides, "Where an applicant consents to a decision on the payment of compensation, etc. under this Act, it shall be deemed that a judicial compromise under the Civil Procedure Act (민사소송법) has been reached with respect to the damage suffered in connection with the democratization movement."
Furthermore, Article 20 of the Enforcement Decree of the Democratization Movement Compensation Act provides, "An applicant who has received a notice of decision on compensation, a notice of decision on payment of living support funds, or a notice of decision on restoration of honor and who wishes to receive compensation, etc. shall submit to the Committee a letter of consent and request in the form of Attached Form No. 10, stating the following matters, attaching one copy each of the original of the decision on compensation, the decision on payment of living support funds, or the decision on restoration of honor, and the applicant's certificate of seal impression," and provides in Item 3, "A statement to the effect that the applicant consents to the decision on compensation and requests payment of compensation, etc." The letter of consent and request in Attached Form No. 10 of the said Enforcement Decree states, "The applicant pledges that, upon receiving the compensation, etc., he/she is entering into a settlement agreement with respect to the case, and that he/she will not make any further claim by any means whatsoever with respect to the case."
(2) In light of the above legislative purpose of the Democratization Movement Compensation Act, the content of the relevant provisions, the content of the letter of consent and request prepared and submitted by the applicant, and especially in light of the fact that the legislative purpose of Article 18, Paragraph 2 of the Democratization Movement Compensation Act is to grant an effect equivalent to that of a judicial compromise, in particular res judicata, where the applicant consents to a decision on the payment of compensation, etc., thereby promptly concluding and implementing the matter through the compensation payment decision procedure of the Compensation Deliberation Committee prior to litigation and granting stability to the decision on payment of compensation, etc., it should be held that, unless the Compensation Deliberation Committee has explicitly decided that part of the content applied for by the applicant does not meet the requirements for a person related to the democratization movement as prescribed by the Democratization Movement Compensation Act, when the applicant consents to the Compensation Deliberation Committee's decision on the payment of compensation, etc., pursuant to Article 18, Paragraph 2 of the Democratization Movement Compensation Act, an effect identical to that of a judicial compromise under the Civil Procedure Act arises with respect to the entirety of the damage suffered in connection with the democratization movement for which the applicant received the compensation, etc., including consolation money.
B. (1) According to the reasoning of the judgment below and the record, the following facts can be found: ① Police officers of the Incheon Dongbu Police Station arrested, without a warrant, key figures of the executive body of the labor union of the non-party company on July 23, 1976, thereby preventing them from attending the delegates' assembly and otherwise obstructing labor union activities; and when, on February 23, 1978, at around 06:00, on the date of the union delegate election, opposing union members threw excrement at union members who were about to vote, thereby preventing the voting from proceeding, and other union members held a demonstration in protest, approximately 120 union members including the plaintiffs, were dismissed on April 1, 1978, upon the direction of the Korean Central Intelligence Agency; ② On April 10, 1978, a list containing personal information of the dismissed workers of the non-party company, including the plaintiffs, was attached under the name of the head of the Busan branch of the National ○○ Labor Union, and the so-called "△△ Industry Blacklist," discovered around 1987, also included the names of 116 dismissed workers of the non-party company; because of this, the dismissed workers of the non-party company, including the plaintiffs, were unable to find employment at other companies, or if employed, were soon dismissed, and state agencies including the Korean Central Intelligence Agency were involved in the preparation and distribution of the said list; ③ the plaintiffs were recognized as persons related to the democratization movement by the Compensation Deliberation Committee between 2001 and 2010, and the facts recognized at that time concerned the demonstrations and sit-ins and the resulting dismissals, and for some of the plaintiffs, the fact that they had received criminal punishment was also noted; however, matters relating to the obstruction of employment due to the preparation and management of the blacklist, etc. are not stated in the resolutions of the Compensation Deliberation Committee, except that, with respect to the resolution concerning Plaintiff 6 and Plaintiff 7, a decision of non-recognition was made on the ground that "the loss of opportunity for re-employment due to the preparation and distribution of the blacklist does not meet the requirements for a person related to the democratization movement as prescribed by the Democratization Movement Compensation Act"; ④ the remaining plaintiffs excluding Plaintiff 10 and Plaintiff 22 (hereinafter in this Section 1 referred to as "plaintiffs who received living support funds" or "said plaintiffs") applied to the Compensation Deliberation Committee for living support funds as persons related to the democratization movement, and each received a decision granting living support funds of 50,000,000 won or 40,631,000 won, respectively, and around that time consented to the said decisions on payment and received the living support funds in full.
(2) In light of the above findings of fact and the following circumstances discernible from the record, namely: ① the Defendant's obstruction of the above labor union activities and forced dismissal, and the obstruction of employment through the preparation and management of the blacklist, etc., all occurred before the enactment of the Democratization Movement Compensation Act and before the said plaintiffs received the living support funds; ② the reason the agencies under the Defendant prepared, managed, and distributed the blacklist against union members was ultimately to manage the dismissed union members and to make their re-employment difficult, and such conduct may be seen as an extension of, or as being in a very close relationship with, the "dismissal on grounds of the democratization movement" for which the said plaintiffs were recognized as persons related to the democratization movement; ③ the period of dismissal caused by the democratization movement and the period of dismissal caused by the subsequent obstruction of employment would overlap, so, absent special circumstances, it is reasonable to view that the applicant, by receiving compensation, etc., is compensated for the damage from both, it should be held that the damage suffered by the said plaintiffs due to the Defendant's obstruction of the above labor union activities, forced dismissal, and preparation and management of the blacklist, etc., all constitute damage suffered in connection with the democratization movement related to the labor union of the non-party company, to which the said plaintiffs consented in receiving living support funds under Article 9 of the Democratization Movement Compensation Act, and that, pursuant to Article 18, Paragraph 2 of the Democratization Movement Compensation Act, an effect identical to that of a judicial compromise extends thereto.
C. (1) The court below's determination, to the same effect, that as between the Defendant and the plaintiffs among the plaintiffs who received living support funds excluding Plaintiff 6 and Plaintiff 7, a judicial compromise under the Civil Procedure Act was reached pursuant to the said provision with respect to the damage suffered in connection with the democratization movement, and that therefore the instant lawsuit, in which the plaintiffs who received living support funds excluding Plaintiff 6 and Plaintiff 7 again claim consolation money for damage suffered in connection with the democratization movement, lacks the benefit of legal protection and is therefore entirely unlawful, is justifiable, and there is no error of misapprehending the legal principles concerning the scope of the effect of Article 18, Paragraph 2 of the Democratization Movement Compensation Act.
(2) However, in light of the legal principles set forth above, with respect to Plaintiff 6 and Plaintiff 7, since the Compensation Deliberation Committee's resolution explicitly decided not to recognize them as persons related to the democratization movement with respect to the portion concerning the loss of opportunity for re-employment due to the preparation and distribution of the blacklist, and living support funds were paid on that basis, it cannot be said that, merely because Plaintiff 6 and Plaintiff 7 received living support funds, the effect of the resulting judicial compromise extends even to the portion of their claim for consolation money for damage caused by obstruction of employment through the preparation and management of the blacklist, etc.
Nevertheless, the court below erred in holding, contrary to the above, that the effect of the judicial compromise extends even to Plaintiff 6 and Plaintiff 7's above claim for consolation money, thereby misapprehending the legal principles concerning the scope of the effect of Article 18, Paragraph 2 of the Democratization Movement Compensation Act and erring in its determination.
D. Meanwhile, the plaintiffs who received living support funds' argument that the above compromise constitutes an unfair juristic act or should be rescinded for mistake is a new argument raised only at the appellate stage of the final appeal and does not constitute a legitimate ground of appeal.
2. As to the Defendant's first ground of appeal
A. Where the State, having received an application for truth verification from a victim subject to the Framework Act on Clearing up Past Incidents for Truth and Reconciliation (진실·화해를 위한 과거사정리 기본법), has, through the Truth and Reconciliation Commission (이하 ‘정리위원회’, hereinafter referred to as the "Reconciliation Commission") under the Defendant, made a decision on truth verification confirming or presuming the victim to be a sacrificed person, it is reasonable to view that there exist special circumstances that would give rise to a reasonable trust that, if the victim exercises his/her rights within a reasonable period based on that decision, the Defendant will not, at least, assert extinguishment of the right on the ground of the completion of the statute of limitations; and that, notwithstanding this, the State's assertion of the completion of the statute of limitations constitutes an abuse of rights contrary to the principle of good faith and is therefore impermissible. Furthermore, the "reasonable period" for the exercise of the above right is, absent special circumstances, limited to a short period analogous to the case of suspension of the statute of limitations under the Civil Act, and in the case of a claim for damages arising from a tort, the period is limited, at most, to three years, which is the short-term statute of limitations period prescribed in Article 766, Paragraph 1 of the Civil Act (see, e.g., Supreme Court en banc Decision 2012Da202819 decided May 16, 2013, etc.).
B. According to the reasoning of the judgment below and the record, the following facts can be found: the Reconciliation Commission made a decision on truth verification concerning the case relating to the labor union of the non-party company on June 30, 2010; and Plaintiff 10 and Plaintiff 22 filed the instant action for damages on December 6, 2010, within six months thereof. Accordingly, it is reasonable to view that the said plaintiffs filed the instant action for damages within a reasonable period after the Reconciliation Commission's decision on truth verification, and therefore the Defendant's assertion of the completion of the statute of limitations with respect to the said claim for damages constitutes an abuse of rights and is therefore impermissible.
C. Although the court below's determination on this point is not entirely without inappropriateness, its rejection of the Defendant's argument on the ground that the Defendant's assertion of the completion of the statute of limitations against the said plaintiffs constitutes an abuse of rights contrary to the principle of good faith and is therefore impermissible is justifiable in its conclusion, and there is no error of misapprehending the legal principles concerning the statute of limitations that affected the outcome of the judgment.
3. As to the grounds of appeal of Plaintiff 10 and Plaintiff 22, and the Defendant's second ground of appeal
The amount of consolation money for mental suffering caused by a tort may be determined by the court of fact-finding, in its discretion belonging to its own authority, upon consideration of various circumstances (see, e.g., Supreme Court Decision 2002Da43165 decided November 26, 2002, etc.).
The court below determined the amount of consolation money for Plaintiff 10 and Plaintiff 22 upon consideration of the content and degree of the Defendant's tort, the time interval between the time when the tort was committed and the present, and other various circumstances revealed in the pleadings of this case.
Upon examining the record in light of the legal principles set forth above, the above measure of the court below is deemed justifiable and acceptable, and there is no error of misapprehending the legal principles concerning the calculation of consolation money.
4. Conclusion
Therefore, the part of the judgment below concerning Plaintiff 6 and Plaintiff 7's claim for consolation money for damage caused by obstruction of employment through the preparation and management of the blacklist, etc. is reversed, and this part of the case is remanded to the court below; the remainder of the appeal by Plaintiff 6 and Plaintiff 7, the appeals by the remaining plaintiffs, and the Defendant's appeal against Plaintiff 10 and Plaintiff 22 are all dismissed; and, of the costs of the appeal, the portion arising from the appeals other than that of Plaintiff 6 and Plaintiff 7 shall be borne by the respective losing parties. This judgment is rendered with the unanimous consent of the participating Justices as set forth in the Order.
Justice Park Bo-yeong (Presiding Justice), Min Il-young (Justice in charge), Lee In-bok, Kim Shin