[edit] Supreme Court Decision 98Da38364 delivered on July 10, 2001 (Damages)

【Main Issues】

[1] Whether the public statements made by the President and the Minister of Defense committing to compensate for damage caused by the so-called Samchong Re-educational Program can be deemed as an admission of the state's obligation to compensate or a waiver of the statute of limitations (negative)

[2] Where the state failed to take any further measures subsequent to the public statements described in item [1] above, whether the state is obligated to compensate for damage resulting from the loss of the victim's trust thereon (affirmative)

【Summary of Decision】

[1] Considering the context, the purpose and the content of the presidential address of November 26, 1988 with respect to the damage caused by the Samchong Re-education Program, the then incumbent President announced a revised administrative policy and sought understanding and support from the general public by and through such public statement, and did not intend such statement as assuming legal effect in itself. Such public statement, therefore, may not in itself be deemed as an admission of the state's obligation to compensate or a waiver of the benefits deriving from the statute of limitations. Further, although the subsequent statement made by the Minister of Defense on December 3, 1988, which intended to publicize the President's revised policy and the compensation procedures, invited the victims and their families to report damage during a fixed period of time and such reports were actually made and filed, these facts do not change the above conclusion as to the nature of the subject public statements. In addition, the affirmative defense of the statute of limitations raised by the state in this action does not constitute an abuse of authority in violation of the principle of estoppel or the principle of good faith.

[2] The presidential address and the subsequent public notice by the Minister of Defense thereto proposing compensation for the victims of the Samchong Re-education Program and the ensuing invitation and reception of the reports of damage can be deemed as a conclusive promise as to a specific occurrence committing to a compensation of such damage through subsequent legislative and other measures, made by the President as the head of the government to the victims of the occurrence. Although not effective as an admission of the obligation to compensate or as a waiver of the statute of limitations, the above commitment led the victims to firmly believe that the commitment would be fulfilled, which became more than a simple expectation and became a benefit that should be legally protected. It is the state's obligation not to upset such trust without any justifiable reasons. Therefore, where the state failed to take subsequent measures in violation of its commitment and thereby breached the trust of the victims who filed the report of damage pursuant to the public address and the notice for filing such damage report, the state is obligated to compensate for damage arising out of the loss of trust including emotional distress.

【Reference Provisions】 [1] Article 2, Article 168 Item 3, and Article 184 of the Civil Code / [2] Articles 750 and 751 of the Civil Code, Article 2 of the State Tort Liability Act

Article 2 of the State Tort Liability Act (Liability to Compensate for Damage) (1) Under this Act, when a public official inflicts damage on a third party intentionally or negligently in the course of performing his or her duties in violation of statutes, or when he or she is liable for damages under the provisions of the Automobile Accident Compensation Guarantee Act, the State or the local government shall compensate for such damage: provided, that when military personnel, armed forces personnel, police officials or homeland reserve forces are killed or injured in action, in training, in the performance of other official duties, or in facilities and motor vehicles, vessels, aircraft and other forms of transportation used for the maintenance of national defense or public safety, they or their surviving family cannot claim damages under the provisions of this Act or the Civil Code, if they can claim accident compensation, surviving family annuity, wound annuity, etc., pursuant to other statues. <Amended by Act, Law No. 3464 of December 17, 1981>

(2) In the instance of the above paragraph (1), if such damage is caused by the intention or gross negligence on the part of the public official, the State or the local government may seek indemnification from the public official concerned.

【Reference Cases】 [1] Supreme Court Full Bench Decision 94Da22927 delivered on December 19, 1996(Gong1997Sang at 75), Supreme Court Decision 94Da23692 delivered on February 11, 1997 (Gong1997Sang at 720)

【Plaintiff (Appointee), Appellee】 Plaintiff (Appointee)

【Defendant, Appellant】 the Republic of Korea

【Court of First Instance】 Andong Branch Court of Daegu District Court Judgment 91Gahap2257 delivered on August 27, 1993

【Court of Second Instance】 Daegu Hight Court Judgment 93Na5582 delivered on July 15, 1998

【Disposition】 The appeal shall be dismissed. All costs of appeal shall be assessed against the defendant-appellant.

【Reasoning】 1. The judgment below properly acknowledged that the plaintiff(appointee, hereinafter referred to as "the plaintiff"), certain non-parties, and appointors 1, 2 and 3 (hereinafter collectively referred to as "the plaintiff and others") suffered from the consequential disabilities due to the beating and other brutalities inflicted by the military personnel in the course of the so-called Samchong Re-education Program [translator's note: a program aimed at subduing those who opposed the regime and others primarily through the military training and the separation from the society led by the former president Chun Doo-hwan](hereinafter referred to as the "Samchong Program") at an army base in 1980 and 1981. The original judgment did not violate the rules of evidence, as asserted as the ground for appeal, in acknowledging the above facts. Therefore, the relevant part of the ground for appeal is unacceptable.

2. The court below correctly deemed the claim of the plaintiff and others for damages for the brutalities in the course of the Samchong Program as their primary claim and dismissed such claim on the ground that such claim had expired as the pertinent statutory limitations period had run. Further, upon an overall review of the brief submitted by the plaintiff on June 16, 1994 and the statements made during the eighth hearing at the court below, the court below also correctly deemed that the plaintiff et al. had raised a supplemental claim for the compensation for emotional distress on the ground of severe mental anguish suffered from the loss of trust in the state, as the plaintiff and others had filed a damage report pursuant to the presidential address of November 26, 1988 and the subsequent announcement and notice of December 3, 1988 made by the Minister of Defense and had believed that there would be a compensation for such reported damage, however, the defendant had failed to take any subsequent measures or to make any compensation. There was no reversible error in matters of law as to disposition and pleading, as asserted in the ground for appeal. Accordingly, the relevant part of the ground for appeal is unacceptable.

3. (a) The court below found: that, on November 26, 1988, as part of the various revised policies for the development of democracy, the then incumbent President delivered a 'Special Presidential Address on the Urgent Situation,' including a commitment to restore the impaired reputation of the victims of the Samchong Program and to compensate such victims for the damage; that the then Minister of Defense subsequently publicized the government's decision to properly compensate the victims of the Samchong Program via newspaper advertisement and other media on December 3, 1988, detailing the necessary documents to file a report for damage, and the eligibility, time period and location for the filing; that the plaintiff and others accordingly filed their reports of damage as the victims of the Samchong Program; that the defendant, however, subsequently changed its positions, taking no further action. The court below then held that it was clear by the rule of experience that the plaintiff and others had suffered emotional distress, independent and distinct from the damage sustained from the Samchong Program, that had arisen from the loss of expected benefits and trust in the state's commitment for compensation, the psychological burden due to the initiation of the litigation and also during the litigation proceedings, the frustration resulting from the acceptance of the plea of the statute of limitations, and a feeling of loss of the right to pursue happiness. Therefore, the court below partially accepted the above alternative claim of the plaintiff and others on the ground that the defendant was obligated to compensate the plaintiff et al. for their emotional distress.

(b) Considering the context, the purpose and the content of the presidential address of November 26, 1988 with respect to the damage caused by the Samchong Program, the then incumbent President announced a revised administrative policy and sought understanding and support from the general public by and through such public statement, and did not intend such statement as assuming legal effect in itself. Further, although the subsequent statement made by the Minister of Defense on December 3, 1988, which intended to publicize the President's revised policy and the compensation procedures, invited the victims and their families to file a report of damage during a fixed period of time, and such reports were actually made and filed, these facts do not change the above conclusion as to the nature of the subject public statements. See Supreme Court Full Bench Decision 94Da22927 delivered on December 19, 1996. In addition, the defendant's affirmative defense of the statute of limitations does not constitute an abuse of authority in violation of the principle of estoppel or the principle of good faith. See Supreme Court Decision 94Da23692 delivered on February 11, 1997.

Accordingly, even if the plaintiff and others suffered emotional distress because the defendant made the plea of the statute of limitations in response to the damages claim and the court below denied the primary damages claim accepting the plea, the defendant is not obligated to compensate for damages to the plaintiff et al. for their emotional distress resulting therefrom.

(c)However, the presidential address and the subsequent public notice by the Minister of Defense thereto proposing compensation for the victims of the Samchong Program and the ensuing invitation and reception of the reports of damage can be deemed as a conclusive promise as to a specific occurrence committing to a compensation of such damage through subsequent legislative and other measures, made by the President as the head of the government to the victims of the occurrence. Although not effective as an admission of the obligation to compensate or as a waiver of the statute of limitations, the above commitment led the victims to firmly believe that the commitment would be fulfilled, a belief that became more than a simple expectation and became a benefit that must be legally protected. It is the state's obligation not to upset such a trust without any justifiable reasons.

In the case at bar, the plaintiff and others duly filed damage reports pursuant to the presidential address and the subsequent announcement and notice made by the Minister of Defense, and thereby firmly believed that the compensation would be fulfilled notwithstanding the legal bar of the expiration of the statutory limitations period. Therefore, where the state failed to take subsequent measures in violation of its commitment and thereby breached the trust of the victims, the state is obligated to compensate for damage arising out of the loss of trust, which includes emotional distress. The holding of the court below in this regard that the defendant was obligated to compensate for the emotional distress to the plaintiff and others for the loss of trust was correct, and there was no reversible error in matters of law in providing contradicting reasons as asserted in the ground for appeal. Therefore, this part of the ground for appeal is also unacceptable.

4. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the defendant-appellant.

It is so ordered per Disposition.

Justices Bae Kee-won(Presiding Justice)

Suh Sung (Justice in charge)

Yu Ji-dam

Park Jae-yoon

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