이른바 과거사 사건에 관한 현재의 법 상태

Abstract

(1) This article discusses law and precedent regarding so-called “Past Human Rights Violation Cases (‘Past Incidents’)“ pursuant to Article 2 (1) 3. and 4. of the "Framework Act on Settlement of Past Incidents for Truth and Reconciliation(the ‘Past Incidents Settlement Act’)", at this point. (2) Special laws related to Past Incidents began to be enacted after the October 1987 Uprising, and a considerable number of laws have been enacted until now. However, the Past Incidents Settlement Act is the only law that comprehensively stipulates events in the past. The Past Incidents Settlement Act was amended on June 9, 2020. (3) Before the Supreme Court's en banc judgment in 2013 (the Supreme Court, May 16, 2013, 2012DA202819 en banc Judgment), the Supreme Court reviewed whether a counter-argument of extinctive prescription could be allowed for each case, and in the beginning, there were many cases in which such a counter-argument was allowed, but then cases in which such a counter-argument wasn't allowed increased. However, the Supreme Court's en banc judgment in 2013 defined that in the event Truth and Reconciliation Commission investigated and decided facts regarding certain Past Incidents, it is a third type in which a counter-argument is not allowed. The ruling also states that even if the debtor has granted trust (the case of third type), the creditor has to exercise his right within a reasonable period of time from the time when such circumstances has occurred, in order to refute the debtor's defense of extinctive prescription. Furthermore, the court added that such period could not exceed three years at the longest, and six months in case of retrial. The Constitutional Court's decision in 2018 (the Constitutional Court, August 30, 2018, 2014Heon-BA148, 162, 219, 466, etc.) states that the part of Article 166 (1) and 766 (2) of the Civil Act that are applied to cases prescribed in Article 2 (1) 3. and 4. of the Past Incidents Settlement Act are unconstitutional, while Article 766 (1) of the Civil Act, Article 766 (1) of the National Finance Act, and Article 96 (2) of the former (National) Budget Accounting Act are constitutional. The Supreme Court recently (in 2019 and 2020) made a judgment in accordance with the Constitutional Court's decision in 2018. Accordingly, it decided that long-term extinctive prescription pursuant to Articles 166 (1) and 766 (2) of the Civil Act shall not be applied to Past Incidents, and that the extinctive prescription of five years under Article 96 (2) of the National Finance Act shall not be applied, either. (4) In spite of the Constitutional Court’s decision in 2018, in the event that the trial was finalized, the damages cannot be compensated. By the Constitutional Court’s decision in 2018, a period for exercise of a right of three years from a certain reckoning date, is guaranteed for a victim of a Past Incident. If the Constitutional Court’s decision in 2018 applies, the precedent of ‘exercise of a right within a reasonable period of time’ cannot. The same applies in case of a verdict of acquittal from a retrial. In this case, a lawsuit for the damages has to be filed within six months from the date when such judgment is finalized.