Open Decision Ledger · Criminal law
A pending tort damages claim as a bar to the compensation order
Supreme Court, July 28, 2022, 2020Do12279 (judgment)
Case name: 사기
Official text on the National Law Information Center
Question
Where a victim has a claim pending in another court against a defendant over money lent on the date of the offence, is that a damages claim in another procedure within Article 26(7) of the Act on Special Cases Concerning Promotion, etc. of Litigation, and what must the court do if it is?
Holding
A damages claim in another procedure means a claim for damages brought on the ground of tort, over the harm caused by the offence in the criminal case. A claim for money on a contractual ground, even where it includes the same KRW 30,000,000 the victim lent the defendant on the date of the offence, is not such a claim, so Article 26(7) did not bar the compensation application. Where the pending claim is one for damages in tort, the court must dismiss the compensation order application by ruling under Article 32(1).
Summary of the holding, verbatim
여기에서 ‘다른 절차에 따른 손해배상청구’는 피고사건의 범죄행위로 인하여 발생한 피해에 관하여 불법행위를 원인으로 손해배상청구를 하는 경우를 가리킨다.
Unofficial English translation
Here, 'a claim for damages under other procedures' refers to a case where a claim for damages is brought on the ground of a tort with respect to the damage arising from the criminal act in the defendant case.
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Stated in the decision
피고인의 범죄행위로 피해자가 입은 직접적인 재산상 손해에 대하여 피해금액이 특정되고 피고인의 배상책임 범위가 명백한 경우에 한하여
Unofficial English translation
with respect to the direct property damage suffered by the victim due to the defendant's criminal act, only where the amount of damage is determined and the scope of the defendant's liability for compensation is clear
Factors
- 피고인의 범죄행위로 피해자가 입은 직접적인 재산상 손해에 대하여
- 피해금액이 특정되고
- 피고인의 배상책임 범위가 명백한 경우에 한하여
- 다른 절차에 따른 손해배상청구가 법원에 계속 중일 때에는
- 불법행위를 원인으로 손해배상청구를 하는 경우를 가리킨다
Unofficial English translation
• with respect to the direct property damage suffered by the victim due to the defendant's criminal act,
• where the amount of damage is determined and
• only where the scope of the defendant's liability for compensation is clear,
• where a claim for damages under other procedures is pending before the court,
• refers to a case where a claim for damages is brought on the ground of a tort
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1985. 11. 12. 선고 85도1765 판결, 대법원 1996. 6. 11. 선고 96도945 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court Decision 85Do1765 decided November 12, 1985; Supreme Court Decision 96Do945 decided June 11, 1996
Decisions referred to
대법원 1985. 11. 12. 선고 85도1765 판결(공1986, 74), 대법원 1996. 6. 11. 선고 96도945 판결(공1996하, 2268)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the victim's pending claim in another court is one for restitution of unjust enrichment rather than damages in tort, does it also bar a compensation order under Article 26(7)?
A later decision on whether a pending claim for unjust enrichment falls within Article 26(7), or an amendment to Articles 25 to 32 of the Act on Special Cases Concerning Promotion, etc. of Litigation, would require this entry to be read again. The outcome of the victim's appeal in the Daegu District Court case 2020Na301658, and any compensation order made against other defendants in the same criminal case, would add to the record.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the victim's pending claim in another court is one for restitution of unjust enrichment rather than damages in tort, does it also bar a compensation order under Article 26(7)?” vs Independent “Does a pending tort action seeking only part of the loss bar a compensation application for the remaining loss?”
Primary asks whether a pending claim for unjust enrichment restitution also bars the application, while independent asks whether a partial tort claim bars a compensation application for the remaining loss.
여기에서 ‘다른 절차에 따른 손해배상청구’는 피고사건의 범죄행위로 인하여 발생한 피해에 관하여 불법행위를 원인으로 손해배상청구를 하는 경우를 가리킨다.Raw 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 Daegu District Court, in its judgment of 14 August 2020 (2019No4467) and in the compensation order application 2020Chogi43, left standing the first-instance finding that the defendants were guilty, and ordered Defendant 2 to pay the applicant KRW 30,000,000 as the money obtained by deception. It also ordered Defendant 1 to pay that sum to the applicant jointly with Defendant 2. The decision does not say how the court below treated Article 26(7) of the Act.
Supreme Court standard: The Supreme Court found no error. The victim had sued Defendant 1 in the Daegu District Court under case number 2019Gadan100599 for KRW 198,700,000 including the KRW 30,000,000 lent on the date of the offence, together with delay damages, on a contractual ground; that court gave judgment against the victim on 20 December 2019 on the ground that the commercial claims were time-barred, and the victim appealed as 2020Na301658. Since the victim had made only a claim on contract, no claim for damages by civil litigation was pending in another court, so the order against Defendant 1 rested on no misapprehension of the law. All the defendants' appeals were dismissed by the unanimous opinion of the Justices.
Distinguishing conditions
- Another court having a claim for damages based on tort pending over the harm caused by the offence in the criminal case, since Article 26(7) then bars the victim from applying for a compensation order.
- A loss that is not direct property damage, an amount that is not specific, or a compensation liability whose scope is not clear, since a compensation order is available only where all three are made out.
Record verification notes
Identify the cause of action used in the other proceeding, because only a claim in tort falls within Article 26(7), and confirm that it is still pending when the compensation order application is made. Check that the sum sought there and the sum sought by the compensation order concern the harm caused by the offence, and that the amount is specific and the liability clear, since those are the limits of the compensation order itself. Note that in this case the victim's pending claim in the other court was a claim on contract, dismissed at first instance on limitation with an appeal pending, so no claim in tort was pending in another court; the Court did not decide that anything turned on the status of that appeal.
From the official text
Points at issue
소송촉진 등에 관한 특례법 제25조 제1항에 따른 배상명령제도의 취지 / 같은 법 제26조 제7항에서 정한 ‘다른 절차에 따른 손해배상청구’의 의미 및 이에 해당하는 경우 법원이 취할 조치
Unofficial English translation
The purpose of the compensation order system under Article 25, paragraph (1) of the Act on Special Cases concerning Expedition of Legal Proceedings / The meaning of 'a claim for damages under other procedures' provided in Article 26, paragraph (7) of the same Act and the measures the court shall take where the claim falls under such a case
Summary of the holding
소송촉진 등에 관한 특례법(이하 ‘소송촉진법’이라 한다) 제25조 제1항의 규정에 따른 배상명령은 피고인의 범죄행위로 피해자가 입은 직접적인 재산상 손해에 대하여 피해금액이 특정되고 피고인의 배상책임 범위가 명백한 경우에 한하여 피고인에게 배상을 명함으로써 간편하고 신속하게 피해자의 피해회복을 도모하고자 하는 제도이다. 소송촉진법 제26조 제7항에 따르면 피해자는 피고사건의 범죄행위로 발생한 피해에 관하여 다른 절차에 따른 손해배상청구가 법원에 계속 중일 때에는 배상신청을 할 수 없다. 여기에서 ‘다른 절차에 따른 손해배상청구’는 피고사건의 범죄행위로 인하여 발생한 피해에 관하여 불법행위를 원인으로 손해배상청구를 하는 경우를 가리킨다. 그러한 경우에는 같은 법 제32조 제1항이 정하는 바에 따라 법원은 결정으로 배상명령신청을 각하해야 한다.
Order
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
소송촉진 등에 관한 특례법 제25조 제1항, 제26조 제7항, 제32조 제1항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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