국가의 소멸시효항변과 신의성실의 원칙- 대법원 2013. 5. 16. 선고 2012다202819 판결을 중심으로 -

Abstract

The Extinctive Prescription emphasizes the idea of achieving the legal stability, relief of difficulty in proving facts, and restrictions on negligence of the exercise of rights. However, the consequences could be severe to creditors if their rights were to be terminated, considering only the intent of the prescription system without exception. The creditors with unavoidable circumstances might find it hard to protect their rights; thus, the result which does not fit the legal ideas of realizing a just society could arise. A claim for damages against the country is subject to the relatively short prescription period of three years from the date when damages or perpetrators were first recognized and five years from the time when an illegal act took place. In reality, a plea of the Extinctive Prescription of the country has become a means of avoiding responsibility for various illegal activities of governmental authority. For this reason, the Supreme Court has set limits on the claims of the country employing a method, “A Principle of Good Faith”. The Supreme Court, unlike the court’s previous ruling, firmly excluded a plea of the Extinctive Prescription of the country since a debtor, who had shown confidence to a rightful person, displayed an irresponsible attitude after the expiration of the date. The Supreme Court also establishes effective period of the Principle of Good Faith and applies to the case of the country investing a debtor with confidence without intending to claim profit of the Extinctive Prescription- the right holder must exercise the rights within a resonable period. The latter case, especially, makes executing rights simple and clear and practices a Principle of Good Faith without damaging the idea of the Extinctive Prescription. Nevertheless, the victims and the families of the deceased, who need truth clarification through ex officio investigation by Truth and Reconciliation Commission, leave us room for interpretation of the Extinctive Prescription. After all, these points can be desirably resolved through legislation of National Assembly. Systematic complements are urgently needed to secure effectiveness of Historical Readjustment, established to take appropriate measures for the victims and their families.