Open Decision Ledger · Constitutional, administrative & state liability
When the three-year limitation starts against the state for unlawful detention
Supreme Court, Apr. 29, 2021, 2020Da206564 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 손해배상(기)
Official text on the National Law Information Center
Question
Where persons unlawfully detained in 1987 sued the state only after the retrial acquittal of the co-detained person whose conviction rested on evidence taken from them became final, from what date does the three-year short limitation period under Article 766(1) of the Civil Act run for them?
Holding
The period ran only from 8 December 2017, when the retrial acquittal of Plaintiff 1 became final, so the suit filed on 30 May 2018 was timely for Plaintiffs 2 and 3. Given the common purpose of the unlawful investigation, the personal links between the plaintiffs and the situation in which a claim became practically possible, they can be taken to have realised the elements of the tort only once the final conviction was set aside; until then a claim on their own account was practically difficult. On Plaintiff 1's appeal the Court found no error in fixing solatium at the currency value of the close of first-instance argument, taking account of the delay in payment, and in making interest run from that date.
Points at issue, verbatim
병에 대한 유죄 확정판결이 취소된 이후에야 갑과 을이 불법행위의 요건사실에 대하여 현실적이고 구체적으로 인식하였다고 봄이 합리적인데도, 갑과 을이 불법구금 상태가 해소되었을 무렵에 손해의 발생 등을 현실적·구체적으로 인식하였을 것이라고 단정하여 단기소멸시효가 완성되었다고 본 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
An example in which the judgment of the court below was held to have erred in misapprehension of legal principles by concluding that A and B must have become realistically and concretely aware of the occurrence of damage, etc. around the time when the state of unlawful detention was lifted and that the short-term extinctive prescription had been completed, even though it is reasonable to view that A and B became realistically and concretely aware of the requirements of the tort only after the final and conclusive guilty judgment against C was set aside
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 원고 2의 패소 부분 및 원고 3에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The portion of the judgment of the court below against Plaintiff 2 and the portion with respect to Plaintiff 3 are reversed, and this part of the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
민법 제766조 제1항에서 정한 ‘손해 및 가해자를 안 날’은 손해의 발생, 위법한 가해행위의 존재, 가해행위와 손해의 발생 사이에 상당인과관계가 있다는 사실 등 불법행위의 요건사실에 대하여 현실적이고도 구체적으로 인식하였을 때를 의미하고
Unofficial English translation
the 'date on which the damage and the tortfeasor became known' provided in Article 766 (1) of the Civil Act means the time when one has acquired a realistic and concrete awareness of the requirements of a tort, such as the occurrence of damage, the existence of an unlawful injurious act, and the fact that there is adequate causation between the injurious act and the occurrence of damage, and
Factors
- 수사과정에서 갑과 을에 대한 가혹행위 등 위법하게 수집된 증거에 의해
- 병에 대한 유죄 확정판결이 취소된 이후에야 갑과 을이 불법행위의 요건사실에 대하여 현실적이고 구체적으로 인식하였다고 봄이 합리적인데도
- 갑과 을이 불법구금 상태가 해소되었을 무렵에 손해의 발생 등을 현실적·구체적으로 인식하였을 것이라고 단정하여
- 불법행위로 인한 위자료를 산정할 때 참작하여야 할 요소
Unofficial English translation
• by evidence unlawfully collected through cruel treatment, etc. of A and B in the course of the investigation
• even though it is reasonable to view that A and B became realistically and concretely aware of the requirements of the tort only after the final and conclusive guilty judgment against C was set aside
• by concluding that A and B must have become realistically and concretely aware of the occurrence of damage, etc. around the time when the state of unlawful detention was lifted
• Factors to be taken into consideration in calculating solatium for emotional distress arising from a tort
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2008. 5. 29. 선고 2004다33469 판결(공2008하, 1109)
Unofficial English translation
Supreme Court Decision 2004Da33469 decided May 29, 2008 (Gong 2008 Ha, 1109)
Decisions referred to
[1][2] 대법원 2020. 11. 26. 선고 2019다276307 판결(공2021상, 141) / [1] 대법원 1999. 4. 23. 선고 98다41377 판결(공1999상, 998), 대법원 2009. 12. 24. 선고 2007다77149 판결 / [2] 대법원 2011. 1. 13. 선고 2009다103950 판결(공2011상, 319), 대법원 2015. 1. 29. 선고 2013다205174 판결 / [3] 대법원 2008. 5. 29. 선고 2004다33469 판결(공2008하, 1109)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a co-detained person has no retrial because the conviction stands or is set aside in another way, from what date are they taken to have realised the elements of the tort?
The remand judgment of the Seoul High Court on the claims of Plaintiffs 2 and 3 will show how the elements of the tort are found on the record. Any later decision treating persons who were not prosecuted differently, or an amendment to Article 766(1) of the Civil Act, would call for this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The issues state both the general meaning of knowledge under Article 766 paragraph 1 and its result for these plaintiffs so it can be read as requirement setting or as case application.
병에 대한 유죄 확정판결이 취소된 이후에야 갑과 을이 불법행위의 요건사실에 대하여 현실적이고 구체적으로 인식하였다고 봄이 합리적인데도Axis 8 (Open question and revisit condition): Primary “If a co-detained person has no retrial because the conviction stands or is set aside in another way, from what date are they taken to have realised the elements of the tort?” vs Independent “Would the same accrual date apply if the claimants' mistreatment had a weaker connection to the conviction overturned on retrial?”
The primary reading asks about accrual without retrial while the independent reading asks about weaker links to the overturned conviction so they point to different leftover points.
병에 대한 유죄 확정판결이 취소된 이후에야 갑과 을이 불법행위의 요건사실에 대하여 현실적이고 구체적으로 인식하였다고 봄이 합리적인데도, 갑과 을이 불법구금 상태가 해소되었을 무렵에 손해의 발생 등을 현실적·구체적으로 인식하였을 것이라고 단정하여 단기소멸시효가 완성되었다고 본 원심판단에 법리오해의 잘못이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 12 December 2019 (2019Na2036347), held that the state was liable under Article 2(1) of the State Liability Act for unlawfully detaining Plaintiff 2 and for detaining and abusing Plaintiff 3. It nevertheless held that the plaintiffs could have realised the damage and the tortfeasor around July 1987, so the three-year period had run and the claims were extinguished. It kept the first-instance figure of solatium for Plaintiff 1 as it stood.
Supreme Court standard: The Supreme Court held that the date of awareness must be found reasonably, weighing the objective circumstances of the individual case and the situation in which a claim became practically possible. Since the detention and abuse of Plaintiffs 2 and 3 served to secure evidence for Plaintiff 1's conviction, and neither was convicted themselves, they could reasonably be taken to have realised the elements of the tort only when the conviction was set aside, confirmed on 8 December 2017. Finding a misstatement of the law on the starting point, it reversed the parts concerning Plaintiffs 2 and 3 and remanded them, and dismissed Plaintiff 1's appeal.
Distinguishing conditions
- A person convicted by a final criminal judgment of their own, since the Court relied on the fact that neither Plaintiff 2 nor Plaintiff 3 had such a judgment.
- A person who realised the damage and the tortfeasor earlier in concrete terms, independently of any retrial.
- A suit filed more than three years after the retrial acquittal became final.
Record verification notes
Build the chronology first: detention of Plaintiff 1 on 5 July 1987, of Plaintiff 2 until about 11 July 1987 and of Plaintiff 3 until 22 July 1987, conviction final on 23 August 1988, retrial opened on 8 December 2015, acquittal of 30 November 2017 confirmed on 8 December 2017, and the suit filed on 30 May 2018. Then look for anything showing earlier awareness, since the Court's reasoning turns on the practical difficulty of claiming before the conviction was set aside. Keep the solatium and interest question apart and read it with Supreme Court Decision 2019Da276307 and Civil Act Articles 393, 751 and 763.
From the official text
Points at issue
[1] 불법행위로 인한 위자료를 산정할 때 참작하여야 할 요소 [2] 불법행위 시와 변론종결 시 사이에 장기간의 세월이 지나 통화가치 등에 상당한 변동이 생긴 경우, 불법행위로 인한 위자료 배상채무의 지연손해금은 위자료 산정의 기준시인 사실심 변론종결일부터 발생한다고 보아야 하는지 여부(적극) 및 이 경우 배상이 지연된 사정을 참작하여 사실심 변론종결 시의 위자료 원금을 산정할 필요가 있는지 여부(적극) / 제1심판결에서 배상이 지연된 사정을 참작하여 제1심 변론종결일을 기준으로 위자료를 산정하였는데 항소심이 이를 그대로 유지한 경우, 위자료 배상채무의 지연손해금은 제1심 변론종결일부터 발생하는지 여부(적극) [3] 민법 제766조 제1항에서 정한 ‘손해 및 가해자를 안 날’의 의미와 그 판단 방법 [4] 수사과정에서 갑과 을에 대한 가혹행위 등 위법하게 수집된 증거에 의해 병이 국가보안법 위반의 범죄사실로 유죄판결을 선고받아 판결이 확정되었는데, 그 후 위 판결에 대한 재심사건에서 병에 대해 무죄판결이 선고되어 확정되자, 갑과 을이 재심판결이 확정된 날부터 3년이 지나기 전에 국가를 상대로 가혹행위 등 불법행위에 따른 손해배상을 구한 사안에서, 병에 대한 유죄 확정판결이 취소된 이후에야 갑과 을이 불법행위의 요건사실에 대하여 현실적이고 구체적으로 인식하였다고 봄이 합리적인데도, 갑과 을이 불법구금 상태가 해소되었을 무렵에 손해의 발생 등을 현실적·구체적으로 인식하였을 것이라고 단정하여 단기소멸시효가 완성되었다고 본 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] Factors to be taken into consideration in calculating solatium for emotional distress arising from a tort [2] Where a long period of time has elapsed between the time of the tort and the close of oral argument, bringing about a substantial change in the value of currency and the like, whether the damages for delay on the obligation to pay solatium for emotional distress arising from a tort must be regarded as accruing from the date of the close of oral argument in the court of fact, which is the reference date for calculating the solatium (affirmative), and whether, in such a case, it is necessary to calculate the principal amount of the solatium as of the close of oral argument in the court of fact, taking into consideration the circumstances that the payment of damages was delayed (affirmative) / Where the court of first instance calculated the solatium as of the date of the close of oral argument in the court of first instance, taking into consideration the circumstances that the payment of damages was delayed, and the appellate court maintained this as it stood, whether the damages for delay on the obligation to pay solatium accrue from the date of the close of oral argument in the court of first instance (affirmative) [3] The meaning of 'the date on which the damage and the tortfeasor became known' provided in Article 766 (1) of the Civil Act and the method of determining it [4] In a case where, in the course of the investigation, A and B were subjected to cruel treatment, etc., and C was sentenced to a conviction and the judgment became final and conclusive for the criminal fact of violating the National Security Act on the basis of evidence unlawfully collected through such cruel treatment of A and B, and thereafter, upon a judgment of not guilty being pronounced against C and becoming final and conclusive in the retrial case against said judgment, A and B sought damages from the State under a tort such as cruel treatment, before three years elapsed from the date on which the retrial judgment became final and conclusive, an example in which the judgment of the court below was held to have erred in misapprehension of legal principles by concluding that A and B must have become realistically and concretely aware of the occurrence of damage, etc. around the time when the state of unlawful detention was lifted and that the short-term extinctive prescription had been completed, even though it is reasonable to view that A and B became realistically and concretely aware of the requirements of the tort only after the final and conclusive guilty judgment against C was set aside
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 원고 2의 패소 부분 및 원고 3에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고 1의 상고를 기각한다. 상고비용 중 원고 1의 상고로 인한 부분은 위 원고가 부담한다.
Unofficial English translation
The portion of the judgment of the court below against Plaintiff 2 and the portion with respect to Plaintiff 3 are reversed, and this part of the case is remanded to the Seoul High Court. The final appeal of Plaintiff 1 is dismissed. The portion of the costs of the final appeal attributable to the final appeal of Plaintiff 1 shall be borne by said plaintiff.
Provisions referred to
[1] 민법 제393조, 제751조, 제763조 [2] 민법 제393조, 제751조, 제763조 [3] 민법 제766조 제1항 [4] 민법 제766조 제1항
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