고의ㆍ중과실 공무원 개인의 배상책임에 있어서 소멸시효와 권리남용

Abstract

The Seoul High Court has ruled that public officers and public prosecutors are not personally liable for the malpractice of their offices, according to the 10 year limitation of actions. In contrast, the Korean government is vicariously liable for their malpractice, even being estopped from asserting a defence of the statute of limitations (2018. 5. 31. 2017NA2046920). The plaintiff, Kee-Hoon Kang, had been sentenced guilty of abetting the suicide of Kee-Sul Kim, who had burned himself to death in 1991 while protesting against the dictatorship of the government and demanding for democracy. The two defendants, who were public prosecutors, had framed Kee-Hoon Kang for abetting the suicide by ghostwriting a will, a suicide note, for Kee-Sul Kim. In addition, another defendant, a handwriting analyst of the Korean Government, had falsely given an expert witness that the handwriting of the will is identical to that of Kang. The court had sentenced Kang guilty and with 3 years of prison in spite of Kang's desperate struggle and every effort in 1992. This case was later referred to as the “Korean Dreyfus affair Case”, as to depict similarity with the Dreyfus affair of France in 1890. In 2015, Kang was newly trialed and finally sentenced not guilty, which was 8 years after the Truth and Reconciliation Commission had deemed the case as groundless and suggested new trial in 2007. Kang had filed a civil tort case in 2015, but the Seoul High Court dismissed the personal liability of the defendants as above. The author reviews and critiques the ruling of this case, focusing on the personal liability of the public officers and public prosecutors with gross negligence or malice and the limitation of actions regulation of Korea compared to the discovery rules of other jurisdictions.