【Holding】

[1] Where there are grounds negating the objective and reasonable expectability of exercising a claim for damages arising from a tort, whether the short-term extinctive prescription under Article 766(1) of the Civil Act does not run (affirmative), and the criteria for determining in such case whether there is objective and reasonable expectability of exercising the right / Matters to be considered in determining whether exercise of the right was possible in a case involving a claim for state compensation

[2] In a case where, after the Constitutional Court on May 27, 2021 rendered a decision that the part of Article 16(2) of the former Act on Compensation for Persons Related to the Gwangju Democratization Movement concerning "mental damage" among "damage suffered in connection with the Gwangju Democratization Movement" is unconstitutional, A and others, the bereaved family members, etc. of persons related to the May 18 Democratization Movement, filed an action seeking state compensation, alleging that they suffered mental damage due to unlawful acts of public officials in the performance of official duties, and the issue was whether the claim for consolation money held by A and others in their own right as family members of persons related to the May 18 Democratization Movement was extinguished by the three-year prescription prescribed in Article 766(1) of the Civil Act, the Court held that even if A and others became aware of the damage and the wrongdoer through the decision of the Gwangju Democratization Movement Compensation Deliberation Committee to pay compensation, etc., it cannot be evaluated that A and others could objectively and reasonably have been expected to exercise their own claim for consolation money on the date of the decision to pay compensation, etc., and A and others should be regarded as having been under an impediment that prevented them from exercising their own claim for consolation money until the Constitutional Court's decision of unconstitutionality; therefore, as they filed the action before three years had elapsed from the date of the decision of unconstitutionality, the extinctive prescription of the family members' own claim for consolation money of A and others had not been completed

【Summary of Decision】

[1] [Majority Opinion] Article 766(1) of the Civil Act, which applies to claims for state compensation pursuant to Article 8 of the State Compensation Act, prescribes the starting point of the short-term extinctive prescription of a claim for damages arising from a tort as "the date on which the injured party became aware of the damage and the wrongdoer." "The date on which the injured party became aware of the damage and the wrongdoer" means the date on which the injured party or his or her legal representative actually and specifically recognized the damage and the wrongdoer; such recognition is not satisfied by a mere presumption of or doubt about the occurrence of damage, and it means the date on which the injured party became aware not only of the fact that damage occurred but also of the fact that the injurious act constitutes a tort—that is, as recognition of the facts constituting the elements of a tort, the existence of an unlawful injurious act, the occurrence of damage, and the causal relationship between the injurious act and the damage.

Article 166(1) of the Civil Act prescribes the starting point of extinctive prescription as "the time when the right can be exercised." Since not only Article 766(1) of the Civil Act but also Article 166(1) of the Civil Act, the general provision on the starting point of extinctive prescription, applies to the three-year short-term extinctive prescription of a claim for damages arising from a tort, the short-term extinctive prescription begins to run only when, in addition to "the date on which the injured party became aware of the damage and the wrongdoer," "the time when the right can be exercised" has arrived. Therefore, if there is an impediment that makes it impossible to exercise the right, the short-term extinctive prescription under Article 766(1) of the Civil Act does not run.

Here, an impediment that makes it impossible to exercise the right generally means a legal impediment, so extinctive prescription is not prevented from running merely because there is a factual impediment, such as the right holder's personal circumstances or ignorance of the accrual of the right or of the possibility of exercising it. However, legal impediments and factual impediments are neither defined in the Civil Act nor grounded in its text, and the two are not always clearly distinguishable. The method of determining the starting point of extinctive prescription according to the distinction between legal impediments and factual impediments is generally sound, but it cannot be said to be a method of determination that admits of no exception.

Article 166(1) of the Civil Act sets the starting point of extinctive prescription at "the time when the right can be exercised," and the ultimate criterion for determining that time is "the objective and reasonable expectability of exercising the right." Therefore, if there are grounds negating the objective and reasonable expectability of exercising a claim for damages arising from a tort, the short-term extinctive prescription under Article 766(1) of the Civil Act should be regarded as not running, even if such grounds do not constitute a legal impediment as generally understood. In such case, whether there is objective and reasonable expectability of exercising the right must be determined from the standpoint of an ordinary person at the time when the exercise of the right is at issue, taking into account normatively and comprehensively the purpose of the extinctive prescription system, together with the object and nature of the right, the characteristics of the creditor and the debtor and their mutual relationship, and the type and context of the case.

Furthermore, in a case involving a claim for state compensation, it is necessary to consider the characteristics of the right to claim state compensation as a special fundamental right established to remedy and provide relief ex post for damage that arose because the State, abandoning its duty to guarantee the fundamental rights of individuals, instead committed a tort against its citizens. Moreover, where a public official did not commit an individual tort in the ordinary course of performing official duties, but rather, as in so-called past-history cases, public officials were systematically involved in committing torts that resulted in grave violations of human rights, and the exercise of the right to claim state compensation was subsequently rendered practically difficult by the difficulty of uncovering the truth, a repressive social atmosphere, and the like, such circumstances must also be taken into account.

In general, ignorance of the law or an erroneous interpretation of the law is not a ground negating the objective and reasonable expectability of exercising a right. However, where the State, as the wrongdoer in a state compensation case, rendered the legal relationship of state compensation complex and unclear in the course of enacting and enforcing the statutes related to state compensation, and as a result the injured citizens were unable to properly recognize their legal position and thus found it difficult to exercise their rights, it must not be readily concluded that exercise of the right was possible even in the earlier situation in which the legal relationship was unclear, merely because a subsequent interpretation of the statutes revealed that the right could have been exercised. In such a case, whether exercise of the right was possible must be determined carefully, centering on whether an ordinary injured party could objectively and reasonably have been expected to exercise the right against the State in light of the content of the relevant statutes and the measures taken by the State thereunder, and also taking into account the purpose of the state compensation system and the need to protect injured parties.

[Concurring Opinion by Justice Oh Kyung-mi] Both the new criterion of "the objective and reasonable expectability of exercising the right" presented by the Majority Opinion and the doctrine of abuse of rights in the defense of extinctive prescription presented by this Concurring Opinion are based on the principle of good faith, grounded in justice and equity, but they differ in the manner of application. Whereas the Majority Opinion applies the principle of good faith to the criterion for distinguishing legal impediments from factual impediments at the stage of determining the starting point of extinctive prescription, this Concurring Opinion maintains that distinction in accordance with precedent, while regarding a case in which, due to a factual impediment, there is no "objective and reasonable expectability of exercising the right" as a "case in which there was an impediment that objectively prevented the creditor from exercising the right," which is a typical ground that precedent recognizes as a "case in which the assertion of the completion of extinctive prescription constitutes an abuse of rights and cannot be permitted." The latter method is the proper form of applying the principle of good faith. It has the advantage of promoting legal stability in determining the starting point of extinctive prescription and, further, of providing comprehensive relief to the victims of various past-history cases through a universal legal doctrine.

[Dissenting Opinion by Justice Noh Tae-ak] The criterion of "the objective and reasonable expectability of exercising the right" put forward by the Majority Opinion directly contradicts the purpose of the extinctive prescription system and the legal doctrine established to date, and its vague and unclear standard brings confusion to the distinction between legal impediments and factual impediments. It is also out of balance when viewed in relation to other provisions of the Civil Act concerning extinctive prescription, namely the provision on the extinctive prescription of claims for damages arising from sexual violations against minors and the system of suspension of prescription. Unreasonably expanding an exception to the starting point of extinctive prescription in order to apply it only to particular cases is an abuse of the theory of exceptions.

[2] In a case where, after the Constitutional Court on May 27, 2021 rendered a decision that the part of Article 16(2) of the former Act on Compensation for Persons Related to the Gwangju Democratization Movement (before amended by Act No. 5291 on January 13, 1997; hereinafter the "former Gwangju Democratization Compensation Act") (hereinafter the "deemed-settlement provision") concerning "mental damage" among "damage suffered in connection with the Gwangju Democratization Movement" is unconstitutional, A and others, the bereaved family members, etc. of persons related to the May 18 Democratization Movement, filed an action seeking state compensation, alleging that they suffered mental damage due to unlawful acts of public officials in the performance of official duties, and the issue was whether the claim for consolation money held by A and others in their own right as family members of persons related to the May 18 Democratization Movement was extinguished by the three-year prescription prescribed in Article 766(1) of the Civil Act, the Court held as follows: the situation in which the family members of persons related to the May 18 Democratization Movement were unable to exercise their rights can hardly be regarded as having arisen from their subjective circumstances or fault, such as ignorance of the law or an erroneous interpretation of the law; rather, it was in part brought about by the State—which, as the wrongdoer, was obliged to compensate for the damage—when, in the course of belatedly enacting and enforcing the compensation-related statutes a considerable time after the date of the tort, it narrowly defined the objects and scope of compensation, failed to clarify the legal relationship, and, from a standpoint of state convenience, sought to conclude the compensation procedure expeditiously using a "consent and claim form" of potentially unconstitutional character; and considering together the purpose of the state compensation system, the special nature of past-history cases, and the need to protect victims, it cannot be evaluated that the family members of the related persons could objectively and reasonably have been expected to exercise their own claim for consolation money on the date of the decision of the Gwangju Democratization Movement Compensation Deliberation Committee to pay compensation, etc. to the related persons or their bereaved family members, so the date of the decision to pay compensation, etc. cannot be taken as the starting point of extinctive prescription; and it can be evaluated that the impediment to the exercise of the related persons' family members' own claim for consolation money was removed only when it was legally declared, through the Constitutional Court's decision of unconstitutionality, that the family members of the related persons could claim compensation for their own mental damage separately from and irrespective of the payment of compensation, etc. under the former Gwangju Democratization Compensation Act; accordingly, even if A and others became aware of the damage and the wrongdoer through the decision to pay compensation, etc., A and others should be regarded as having been under an impediment that prevented them from exercising their own claim for consolation money until the decision of unconstitutionality, and therefore, because of the existence of the deemed-settlement provision, A and others were unable to exercise the claim for consolation money held in their own right as family members of the related persons until May 27, 2021, the date of the decision of unconstitutionality, and as they filed the action before three years had elapsed from that date, the extinctive prescription of A and others' own claim for consolation money had not been completed; the lower court's judgment, which held otherwise, was therefore erroneous in its misapprehension of legal principles.

【Referenced Statutes】

[1] Article 8 of the State Compensation Act, Article 2, Article 166(1), and Article 766(1) of the Civil Act [2] Article 8 of the State Compensation Act, Article 166(1) and Article 766(1) of the Civil Act, Article 1 of the former Act on Compensation for Persons Related to the Gwangju Democratization Movement (before amended by Act No. 5291 on January 13, 1997) (see current Article 1 of the Act on Compensation for Persons Related to the May 18 Democratization Movement), Article 2(1) (see current Article 2-2(1) of the Act on Compensation for Persons Related to the May 18 Democratization Movement), Article 16(2) (see current Article 16(3) of the Act on Compensation for Persons Related to the May 18 Democratization Movement), Article 20 of the former Enforcement Decree of the Act on Compensation for Persons Related to the Gwangju Democratization Movement (before amended by Presidential Decree No. 19585 on June 30, 2006) (see current Article 20 of the Enforcement Decree of the Act on Compensation for Persons Related to the May 18 Democratization Movement)

【Referenced Precedents】

[1] Supreme Court Decision 99Da66427, 73371, February 11, 2003 (Gong2003Sang, 765)
Supreme Court Decision 2008Da15865, September 9, 2010 (Gong2010Ha, 1876)
Supreme Court Decision 2010Da13282, March 10, 2011 (Gong2011Sang, 708)
Supreme Court Decision 2009Da33754, April 13, 2012 (Gong2012Sang, 759)
Supreme Court Decision 2014Da211978, October 27, 2016 (Gong2016Ha, 1760)
Supreme Court Decision 2019Da246573, April 9, 2020
Supreme Court Decision 2021Da201184, January 12, 2023 (Gong2023Sang, 429)