Omission in Administrative Rule-Making, Emergency Decrees, and the Commencement of Limitation in Historical-Injustice Cases: Standards in Three Supreme Court Judgments on State Compensation Liability

Question

This brief examines three en banc and leading judgments on three issues: the illegality of an omission in administrative rule-making that delayed guaranteeing the right of access of persons with disabilities; State compensation liability arising from the issuance, enforcement and adjudication of Presidential Emergency Decrees; and the point from which the short limitation period runs in retrial and truth-finding cases concerning historical injustices.

The first issue is the question addressed in judgment 2022Da289051: "Must the State pay compensation for a 14-year omission that exempted small retail shops of less than 300 m² from the obligation to install convenience facilities?" The second issue is the question addressed in judgment 2018Da212610: "Must the State pay compensation for damage suffered through the issuance of Emergency Decree No. 9, which was unconstitutional and void, and through compulsory investigation and conviction?"

The third issue is the question addressed in judgment 2023Da285162: "After compensation for the 18 May Democratization Movement, from when does the three-year limitation period run for family members' claims for consolation money in their own right?" All three judgments ask how the boundaries of the statutory wording and the substantive factors for decision are to be identified on the record.

Material to check

First (2022Da289051), this judgment addresses the status of the right of access of persons with disabilities as a fundamental right and the requirements for its concretisation into a positive right; the illegality of an omission, without justifiable reason, to enact improving legislation; and the requirements for State compensation liability arising from that omission, together with the award of consolation money and the factors for calculating its amount. To determine from the record whether a phased expansion consistent with the purpose of the delegation took place, one must examine the amendment history and application of the "scope of facilities subject to the obligation to install convenience facilities for persons with disabilities" as prescribed by Article 7 of the Persons with Disabilities Convenience Promotion Act and the Enforcement Decree made under that delegation. Article 11 of the Enforcement Decree of the Act on the Prohibition of Discrimination against Persons with Disabilities, which prescribes the facilities subject to the obligation to provide reasonable accommodation, must also be examined together with the design and permit documents for facilities newly built, extended or rebuilt on or after 11 April 2009. On that basis, it is assessed whether discretion was exercised in the direction of phased expansion and whether improving legislation was delayed.

Second (2018Da212610), this judgment addresses whether State compensation liability is recognised for damage suffered by persons who, through a series of State acts ranging from the issuance of Emergency Decree No. 9 to its application and enforcement, underwent compulsory investigation or were convicted and served their sentences. To determine from the record whether objective justifiability was lost, one must examine the text of Emergency Decree No. 9 as issued and the investigation records, indictments and judgments concerning "compulsory investigation, the institution of prosecution, and the pronouncement of convictions". Records of detention and execution of sentences must also be examined to confirm the period served and the extent of the damage.

Third (2023Da285162), this judgment addresses whether the short limitation period does not run where there are grounds negating the objective and reasonable expectability of exercising a claim for damages, the standard for assessing that expectability, and the matters to be considered together in State compensation cases. To determine the commencement of the limitation period from the record, one must examine the decisions on payment of compensation, etc. issued by the Committee for the Deliberation of Compensation for Persons Related to the Gwangju Democratization Movement and the consent and claim forms prepared at that time. The decision of unconstitutionality of 27 May 2021 and the filing records showing the date the action was brought must also be examined to determine whether there was "objective and reasonable expectability of exercising the right".

Possible readings

In case 2022Da289051, the issues were whether the right of access of persons with disabilities is a constitutional fundamental right and the requirements for it to become a concrete right; whether an omission in administrative rule-making, in which the administrative authority failed to perform its duty to enact improving legislation, is unlawful; and the resulting State compensation liability and obligation to pay consolation money.

In case 2018Da212610, the issue was whether State compensation liability is recognised for damage suffered by citizens who, through the issuance, application and enforcement of Emergency Decree No. 9, underwent compulsory investigation or were convicted and served their sentences.

In case 2023Da285162, the issues were whether the short limitation period under Article 766(1) of the Civil Act runs where there are grounds negating the objective and reasonable expectability of exercising the right, the standard for that determination, and how that standard applies to State compensation claims brought by bereaved family members and others of persons related to the 18 May Democratization Movement after the Constitutional Court's decision of unconstitutionality.

What the decisions held

Supreme Court en banc Decision 2022Da289051 rendered on 19 December 2024 held as follows: "Even where the right of access of persons with disabilities is infringed, the State's obligation to pay consolation money for the mental suffering thereby sustained by persons with disabilities is not excluded." In this judgment, the majority opinion recognised the right of access of persons with disabilities as a fundamental right derived from Articles 10 and 11 and Article 34(1) and (5) of the Constitution. It stated that legislation is required for the right of access to be concretised into a right to demand the positive installation of facilities, and that the State has a duty to take the necessary measures in light of its fiscal capacity and level of development. It held unlawful the omission whereby, despite the delegation in Article 7 of the Persons with Disabilities Convenience Promotion Act, the exemption for premises of less than 300 m² was maintained for more than 24 years and improving legislation was delayed for more than 14 years from 11 April 2008. It found that this omission deviated markedly from the purpose of the discretion and lost objective justifiability, and thus constituted an act in violation of law committed intentionally or negligently within the meaning of Article 2(1) of the State Compensation Act. Infringement of the right of access also gives rise to consolation money for mental suffering, and the amount is determined at the court's discretion, taking together the constitutional status of the infringed right, the extent and duration of the infringement, the circumstances of (non-)performance, the damage remaining after belated performance, and the scarcity of remedies.

Supreme Court en banc Decision 2018Da212610 rendered on 30 August 2022 held as follows: "In such a case, the series of State acts ranging from the issuance of Emergency Decree No. 9 to its application and enforcement, viewed as a whole, is assessed as unlawful in that public officials, in performing their duties, neglected their objective duty of care so that their official acts lost objective justifiability, and State compensation liability may be recognised for damage suffered by individual citizens who, through the application and enforcement of Emergency Decree No. 9, underwent compulsory investigation or were convicted and served their sentences." Under this judgment, liability under Article 2 of the State Compensation Act is ordinarily assessed by reference to an average public official, on the basis of breach of the objective duty of care and loss of objective justifiability. The manner and purpose of the act, whether and to what extent the victim was involved, and the interests infringed and the extent of the damage are considered together with whether there is a substantive reason for the State to bear liability for compensation. Emergency Decree No. 9 failed to satisfy the requirements for issuance and infringed freedom of expression, the right of petition, personal liberty and academic freedom, so that its unconstitutionality and voidness are manifest. Viewing as a whole the series of State acts from issuance through compulsory investigation, the institution of prosecution, conviction and imprisonment, the Court assessed them as unlawful for loss of objective justifiability, recognised compensation for the damage of individual citizens, and overruled its prior precedents.

Supreme Court en banc Decision 2023Da285162 rendered on 22 January 2026 held as follows: "Therefore, where there are grounds negating the objective and reasonable expectability of exercising a claim for damages arising from a tort, the short limitation period under Article 766(1) of the Civil Act should be regarded as not running, even if such grounds are not legal impediments as generally understood." In this judgment, the Court held that the limitation period runs only when, in addition to the date on which the injured party became aware of the damage and the tortfeasor under Article 766(1) of the Civil Act, the time at which the right can be exercised under Article 166(1) of the Civil Act has arrived. The standard for the commencement point is the objective and reasonable expectability of exercising the right. The Court stated that the particular characteristics of State compensation, the difficulty of uncovering the truth about historical injustices, and the prevailing climate of oppression are to be taken into account together. It held that where the State, by making legislation unclear, aggravated the difficulty of exercising the right, it is not to be readily assumed that the right could have been exercised earlier. It found that family members could not have been expected to exercise their own claims for consolation money as of the date of the compensation decision, and that the impediment was removed by the decision of unconstitutionality of 27 May 2021.

Practical checklist

First, must the State pay compensation for a 14-year omission that exempted small retail shops of less than 300 m² from the obligation to install convenience facilities? The check is carried out by examining in the record the scope of application and amendment history of the Enforcement Decree and the circumstances of the legislative delay, and by confirming, according to the facts and their timing, whether the duty to enact improving legislation was left unperformed "without justifiable reason" and whether the discretion markedly lost reasonableness.

Second, must the State pay compensation for damage suffered through the issuance of Emergency Decree No. 9, which was unconstitutional and void, and through compulsory investigation and conviction? The check is carried out by examining in the record the text of the decree as issued, the investigation records, the indictments, the judgments and the records of imprisonment, and by confirming, according to the facts and their timing, "the manner and purpose of the act", the type of interests infringed and the extent of the damage.

Third, after compensation for the 18 May Democratization Movement, from when does the three-year limitation period run for family members' claims for consolation money in their own right? The check is carried out by examining in the record the decisions on payment of compensation, etc., the consent and claim forms, the decision of unconstitutionality and the date the action was brought, and by confirming, according to the facts and their timing, whether, in addition to "the date of becoming aware of the damage and the tortfeasor", the time at which the right could be exercised had arrived.

Glossary

Framework for the illegality of an omission in administrative rule-making, State compensation liability, and consolation money for infringement of the right of access (2022Da289051): The majority opinion recognised the right of access of persons with disabilities as a fundamental right derived from Articles 10 and 11 and Article 34(1) and (5) of the Constitution. It stated that legislation is required for the right of access to be concretised into a right to demand the positive installation of facilities, and that the State has a duty to take the necessary measures in light of its fiscal capacity and level of development. It held unlawful the omission whereby, despite the delegation in Article 7 of the Persons with Disabilities Convenience Promotion Act, the exemption for premises of less than 300 m² was maintained for more than 24 years and improving legislation was delayed for more than 14 years from 11 April 2008. It found that this omission deviated markedly from the purpose of the discretion and lost objective justifiability, and thus constituted an act in violation of law committed intentionally or negligently within the meaning of Article 2(1) of the State Compensation Act. Infringement of the right of access also gives rise to consolation money for mental suffering, and the amount is determined at the court's discretion, taking together the constitutional status of the infringed right, the extent and duration of the infringement, the circumstances of (non-)performance, the damage remaining after belated performance, and the scarcity of remedies. The factors identified include the constitutional status and importance of the infringed right, the extent and duration of the infringement, and the circumstances in which the duty of administrative rule-making was not performed.

The series of State acts including the issuance, enforcement and adjudication of Emergency Decrees, and the standard for establishing State compensation liability (2018Da212610): Liability under Article 2 of the State Compensation Act is ordinarily assessed by reference to an average public official, on the basis of breach of the objective duty of care and loss of objective justifiability. The manner and purpose of the act, whether and to what extent the victim was involved, and the interests infringed and the extent of the damage are considered together with whether there is a substantive reason for the State to bear liability for compensation. Emergency Decree No. 9 failed to satisfy the requirements for issuance and infringed freedom of expression, the right of petition, personal liberty and academic freedom, so that its unconstitutionality and voidness are manifest. Viewing as a whole the series of State acts from issuance through compulsory investigation, the institution of prosecution, conviction and imprisonment, the Court assessed them as unlawful for loss of objective justifiability, recognised compensation for the damage of individual citizens, and overruled its prior precedents. The factors identified include the manner and purpose of the act, the type of interests infringed and the extent of the damage.

Commencement of the short limitation period and the standard for impediments to exercising rights in State compensation claims concerning historical injustices (2023Da285162): The Court held that the limitation period runs only when, in addition to the date on which the injured party became aware of the damage and the tortfeasor under Article 766(1) of the Civil Act, the time at which the right can be exercised under Article 166(1) of the Civil Act has arrived. The standard for the commencement point is the objective and reasonable expectability of exercising the right. The Court stated that the particular characteristics of State compensation, the difficulty of uncovering the truth about historical injustices, and the prevailing climate of oppression are to be taken into account together. It held that where the State, by making legislation unclear, aggravated the difficulty of exercising the right, it is not to be readily assumed that the right could have been exercised earlier. It found that family members could not have been expected to exercise their own claims for consolation money as of the date of the compensation decision, and that the impediment was removed by the decision of unconstitutionality of 27 May 2021. The factors identified include the purpose of the system of extinctive prescription, the object and nature of the right, and the type and context of the case.

Sources and limitations

This brief is based solely on the original texts, as published on the National Law Information Center, of Articles 2(1) and 8 of the State Compensation Act; Articles 10, 11(1) and 29(1) of the Constitution of the Republic of Korea; Articles 166(1), 750, 751 and 766(1) and (2) of the Civil Act; and Articles 1, 4, 7 and 8 of the Act on Guarantee of Promotion of Convenience of Persons with Disabilities, the Aged, and Pregnant Women, and on the judgments in Supreme Court Decision 2022Da289051 rendered on 19 December 2024, Supreme Court Decision 2018Da212610 rendered on 30 August 2022, and Supreme Court Decision 2023Da285162 rendered on 22 January 2026.

This is academic research material setting out general legal principles and standards for reviewing records; it is neither legal advice on any individual case nor an opinion for submission to a court.

Points left open

2022Da289051: To what extent can mental suffering that is not remedied merely by a declaration that the omission in administrative rule-making was unlawful be recognised?

2018Da212610: How far can liability extend that treats a whole series of State acts as unlawful without identifying individual public officials or proving their intent or negligence?

2023Da285162: In historical injustices where compensation was accepted as a final settlement, when does the expectability of family members' claims for consolation money in their own right arise?

When to reconsider

2022Da289051: This is to be revisited if, owing to changes in social and economic conditions and public consensus, the scope of covered facilities is again assessed as too narrow. If voluntary installation rates, costs or circumstances of disruption change, the justifiable reasons are also to be re-examined.

2018Da212610: If the records of arrest, detention or conviction under Emergency Decree No. 9, or the scope of the settlement established under the former Democratization Movement Compensation Act, turn out differently, the findings on the establishment of compensation liability and on dismissal of the action are to be revisited.

2023Da285162: This is to be revisited if material is found showing that the compensation legislation or the use of forms differed before and after the decision of unconstitutionality.

Statutes referred to

• 국가배상법 제2조 제1항, 제8조
• 대한민국헌법 제10조, 제11조 제1항, 제29조 제1항
• 민법 제166조 제1항, 제750조, 제751조, 제766조 제1항·제2항
• 장애인·노인·임산부 등의 편의증진 보장에 관한 법률 제1조, 제4조, 제7조, 제8조

Decisions referred to

• 대법원 2024. 12. 19. 선고 2022다289051 전원합의체 판결 · Decision ledger
• 대법원 2022. 8. 30. 선고 2018다212610 전원합의체 판결 · Decision ledger
• 대법원 2026. 1. 22. 선고 2023다285162 전원합의체 판결 · Decision ledger

Verification status

The provisions cited (Articles 2(1) and 8 of the State Compensation Act; Articles 10, 11(1) and 29(1) of the Constitution of the Republic of Korea; Articles 166(1), 750, 751 and 766(1) and (2) of the Civil Act; and Articles 1, 4, 7 and 8 of the Act on Guarantee of Promotion of Convenience of Persons with Disabilities, the Aged, and Pregnant Women) and the judgments examined (Supreme Court Decision 2022Da289051 rendered on 19 December 2024, Supreme Court Decision 2018Da212610 rendered on 30 August 2022, and Supreme Court Decision 2023Da285162 rendered on 22 January 2026) were checked against the current statutes on the National Law Information Center and the original texts of the Supreme Court judgments as at 15 October 2026. This brief cites only the three judgments listed among the judgments examined.