국가범죄와 손해배상의 소멸시효: 기산점의 기준과 시효완성의 효력을 중심으로

Abstract

In interpreting “time to be able to exercise rights” in Article 166, Paragraph 1 of the Korean Civil Code, contracts and torts must be treated differently. In particular, the nature of the victim, the status of the perpetrator, the reason for retribution, the possibility of lawsuit, and force majeure based on the victim's perception, or the perceptibility should be considered when determining starting point of extinctive prescription in torts. When considering these factors, it is necessary to judge from the standpoint of an average person whether the right holder can be expected to exercise the right. In the case of state crime, the need for protection of the right holder is much greater, so the possibility of exercising the right should be judged from the victim's point of view. In particular, in the case of anti-human right crimes and state violence crimes such as slaughter or torture, there is a need to develop a legal system capable of relieving rights at any time without requiring the time limit for the relief of victims' rights. In regard to it, prescription exclusion, the extension of the prescription period through prescription suspension or renewal can be reviewed. If the determination of the starting point of the limitation period is based on subjective factors such as the obligee’s knowledge, it may impair legal stability. The legal uncertainty caused by subjective factors can be supplemented by rational adjustment of the short-term limitation period and by reduction of the long-term limitation period. In other words, the balance of interest between the obligee and the obligor can be sought through the suspension, the extension of limitation period and the diminution of the limitation period. Furthermore, legislation is needed to exclude extinctive prescription or to introduce the longest period of 50 years for rights to claim damages caused by state crimes. As a result of the completion of the limitation period, the right does not extinguish, but the obligor shall have the opportunity to refuse to pay or fulfill his duty through litigation. Considering the balance of interest, and that the prescription system apply on both the type of damages due to default or general torts and the type of torts such as personal injury, child abuse or state crimes, it is appropriate to adopt the idea that the system does not make rights cease to exist, but guarantee a procedural defense to obligors.