반인권 국가범죄에 관한 소멸시효 기산점 연구 : Study on Extinction Prescription of Anti-Human Rights Crimes
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- 서울대학교 대학원
- 학위논문(박사)--서울대학교 대학원 :법학전문대학원 법학과,2020. 2. 이계정.
- 불법행위에 관한 손해배상청구권에 대하여 시효제도가 만들어진 당시엔 행위와 동시 또는 몇초 간격을 두고 손해가 발생했기 때문에 손해배상청구권의 기산점을 행위시부터 보는데 별 문제가 없었다. 그러나 소멸시효를 현실에 맞게 재구성하려는 사법 및 입법은 채권자가 인식할 수 없음에도 시효가 경과하여 권리자의 청구가 배척되는 것에 따른 시효제도의 불공정성에 우려를 나타냈다. 손해가 발생하여도 객관적 인식가능성조차 없는 경우나 뒤늦게 손해가 발생한 경우에 대해 행위시를 기점으로 시효를 진행하는 것은 정의와 손해의 공평·분담 원칙에서 벗어난다는 공감대가 일선 소송에서 제기되면서 소멸시효의 기산점이 변동되기 시작했다.
기산점이 변동된 사안으로 ① 과실책임 소송과 같이 행위 시에 객관적 인식가능성이 없었던 경우 ② 잠재적 손해 소송처럼 뒤늦게 손해가 발생한 경우에 ③ 채권자의 심리적인 장애로 뒤늦게 그 손해를 알게 된 경우나 ④ 채무자가 사해적 은폐행위로 채권자의 청구원인을 은폐한 경우 두드러지는데 (1) 지연된 손해의 발생, (2) 비난할 수 없는 채권자의 선의(blameless ignorance) (3) 근본적 공정성과 손해의 공평·타당한 분배 (4) 생명·신체 법익에 대한 특별한 보호를 특징으로 하고 있다.
반인권 국가범죄를 살펴보면 국가 공권력에 의해 헌법과 법률에 위반하여 광범위하고 조직적, 체계적으로 자국민의 생명·신체에 심각한 침해를 야기하는 불법행위로, 행위 자체를 조작·은폐하여 사건의 실상을 오랫동안 알 수 없는 특성을 지닌 기산점 변동 사안 중 ④ 유형에 속한다. 따라서 진실규명이 선행되어야 하는데 지난 참여정부 시절 진실화해를 위한 과거사 정리 기본법이 제정되어 과거의 반인권 국가범죄에 대하여 진실규명이 이루어졌다.
진실규명이 이루어진 반인권 국가범죄에 대한 피해자들은 국가를 상대로 손해배상 소송을 제기하고 있는 가운데 반인권 국가범죄는 언제부터 시효가 진행되는가에 직면한다.
소멸시효가 완성되면 채권자는 자신의 청구권을 소구할 수 없어 결과적으로 채권자의 권리행사를 박탈하는 것이 된다. 근본적 공정성과 손해의 공평·타당한 분배 원칙에 따르면 이러한 불공정한 결과는 채권자가 권리를 행사할 수 있는 공정한 기회를 가졌음에도 불구하고 그 권리를 행사하지 아니한 경우에만 정당화될 수 있다.
또한 반인권 국가범죄는 일반 불법행위와 달리 국가기관에 의한 진실규명이 이루어지기 전까지는 사건이 조작·은폐되어 있었음에도 일련의 법령에 의한 행위 등으로 보이는 외관을 갖고 있었다. 이러한 사안에서는 ④ 유형의 사해적 은폐행위와 같이 반인권 국가범죄에 대해 진실화해위원회에 의한 진실규명을 통해 국가의 공권력에 의한 불법행위로 밝혀지는 시점이 고려되어야 한다.
우리 판례는 당사자 간의 특수 관계와 권리자의 권리행사를 기대할 수 없다는 점을 고려하여 손해의 현실화를 통하여 불법행위의 소멸시효 기산점을 변동시킨바 있다. 반인권 국가범죄 또한 국가 공권력에 의한 불법행위임이 진실규명을 통해 드러난 때부터 손해가 현실화되어 이때부터 시효를 진행하는 것이 타당하다 할 것이다.
Study on Extinction Prescription of Anti-Human Rights Crimes
This study examined the changes in starting point of the statute of limitation. The characteristics that appear here are also applied to anti-human rights crimes and to set the starting point of the statute of limitation. Therefore, the research focus was on the collection of cases where the starting point of the statute of limitation was changed.
I examined the jurisprudence and the rationale that appeared in the precedents with emphasis on the case collection. The cases of changing the statute of limitations from all over the world were collected and classified by type.
In Chapter 2, We examine the prescription of the "civilian group sacrifice case" and the "serious human rights violation incident or allegation of manipulation" stipulated in the Article 2, Paragraph 1, Clauses 3 and 4 of the Truth and Reconciliation Commission Act. An anti-human rights crime is an act that violates the life and body of the people in a systematic and massive way through the national public authority due to the nature of the crime. To resolve compensation for compensation, you need to verify the truth. So we discussed the truth and significance of the Reconciliation Commission.
In Section 2, the Democratization Act, which is part of the democratization movement, provided compensation for crimes against humanity, but the Truth and Reconciliation Commission Act confirmed that it did not provide compensation for civilian group sacrifices and human rights violations.
Section 3 examines the exclusion of prescriptions in international law for human rights offenses. In Germany, where claims were delayed due to political restrictions, the suspension of prescription due to force majeure was applied.
In Chapter 3, we review the current statute of limitations by applying comparative law. To this end, we examined the modern meaning of the past and the prescriptive system in the statute system and the legislative trends of the statute of the world.
The prescription was based on the revision of the statute of law around the world in the 2000s, and the subjective starting point based on the creditor's recognition as the basic system. The characteristics of legislation in each country are starting point of the statute of limitation based on the creditor's subjective perception as the prescription period is shortened.
In the past, if prescription was aimed at legitimate stability through objectively applying the starting point of the statute of limitation irrespective of the subjective circumstances of the creditor, the current situation is that if the creditor does not have the opportunity to know the cause of his claim. This assumes that it is against the public interest of the prescriptive system. This change has led to consideration of the prescription of the claim for damages due to environmental lawsuits such as asbestos lawsuits.
Section 2 deals with the current issues in the prescription of damages.
First, in case of damages foreseeable according to the principle of unification of damages for damages claim, the statute of limitations proceeded, but in the case of environmental lawsuits, the starting point of the damages was changed to when damages occurred.
Second, the occurrence of such damages appears through 'delayed discovery'. So, we examine about the discovery rule which is the subjective system.
Third, most prescription systems are based on short - term subjective and long - term objectivity. In this case, long-stop is usually seen at the time of the action, and as a result, if the damage is delayed, the starting point of the court will change.
In environmental litigation such as asbestos, when the prescription has already expired and the life or body is damaged, there is a tendency to solve the problem by not applying long-stop.
Section 3, we reviewed the prescription regulations in Korea. First, in Section 1 of the Civil Code Article 166, when the right to exercise the right to exercise a plurality of academic views and cases are limited to when there is no legal disability. However, due to the nature of illegal acts, it does not correspond to the time when there is no obstacle in the law, and it is only a passive meaning that the time limit is not proceeded when the right is not exercised. Therefore, the prescription should proceed from when the creditor has no objective obstacle.
Section 5 examined the right to claim for tort and examines the 'realization of damage' for long-term prescription.
Chapter 4 discusses the changes in the commencement of prescriptions around the world.
In Section 1, negligent litigation, the right to claim damages has been proceeded from the time when the victim knew or should have known the fault through discovery in the case law. In the case of Japan, which is a continental law system, the commencement of prescriptions for 20 years for hepatitis B is seen as the occurrence of damages in the same way as potential damage in environmental litigation.
Section 2 explained how each country applied legislation on environmental claims such as potential damage to asbestos. In the UK, the asbestos problem appeared early, but the court hesitated to apply discovery rule and was resolved by law. In the United States, the discovery rule was applied to relieve the victims. We also delayed the commencement of prescription for delayed damage. In addition, the period of prescription had expired, but it was confirmed that it was excluded because it was out of equality and justice.
Section 3 CSA lawsuits are emerging as an important issue of the commencement of prescription in most countries in recent years. The characteristic of this case is that after the expiration of the commencement of prescriptions, the memory of sexual abuse or trauma has been resurrected as adults and sued. Therefore, when the cause of causation and damage occurred as a legal issue, in the case of England and the United States, the scope of application of discovery rule was expanded, and in this case. In the case of Germany, the commencement of prescriptions was postponed through the suspension of force majeure to accept the victim. In recent years, Japan has also made the commencement of prescriptions a diagnosis of depression due to sexual abuse, similar to foreign cases.
Section 4 shows the changing commencement of prescriptions for fraudulent cover-ups intended to expire. In particular, Guerin v. R decision is a typical example of the commencement of prescriptions when the victim, Aboriginal, finds out the illegal activities such as document forgery or concealment of the state.
Chapter 5 discusses the specific issues raised in individual cases.
In Section 1, in the case of civilian group sacrifices and questionable human rights violations, the court found that the creditors had a duty to exercise a substantial period of rights. In order to examine this, I examined the case of Japan which made good faith standards for extinction prescription claims. As a result, no creditors were obliged to exercise their rights.
In addition, it was confirmed that the application of the analogy of the suspension of the statute was not valid through comparison with the foreign country.
In Section 2, we examined the case of Japan in relation to the commencement of prescriptions in the case of reconsideration after a conviction of criminal conviction. There is an opinion that reconsideration is necessary and that it is possible to charge directly. And examined whether the commencement of prescription should be regarded as a delayed impairment until the reexamination is confirmed. In addition, the 6-month limit for a considerable period of time has been examined in relation to the problem of returning unfair advantage over the period of individual cases.
Section 3 examined the commencement of prescriptions of anti-human rights crimes. First identifies the characteristics of the example that led to such a change in the commencement of prescriptions. ① the occurrence of late damages ② special protection for life and physical interests ③ fiduciary duties based on trust relationships ④ blameless ignorance ⑤ causality is the main feature. The criteria of discoverablility are ① damage in case of continuous damage rather than one-time illegal act ② case in which damage includes pathological effect without trauma ③ After the period of prescription had expired by concealing the cause of the claim. ④ When the victim knows that the damage occurred, but has not yet discovered that it was caused by the act of causation or illegal act.
On August 30, 2018, the Constitutional Court ruled that the objection criteria for national crimes against human rights were excluded and only subjective standards were considered. This means that the objective long-stop regulations in foreign countries have taken into account the measures taken by the Constitutional Court to exclude the application of the life body against the vulnerability of the victim's rights remedy in respect of the unknown environmental lawsuits regardless of the occurrence of damages.
Last, In view of the fact that the ''realization of damage' based on objective long-stop is based on the relief of the rights of the victims, in the case of anti-human rights crimes, the assumption that acts by state public power is not a legitimate act by law, It is possible to claim damages for the country.
Until there is a decision that illegal act is due to the fact-finding decision of the Truth and Reconciliation Committee, anti-human rights crimes are regarded as 'just act by statute', so 'realization of damage' starts from the day when the truth is determined.
Through the Truth and Reconciliation Commission's decisions, criminals, tort, causality and damage have been identified by perpetrators of anti-human rights crimes. Therefore, the starting point of the prescription begins at the time of the decision of the Truth and Reconciliation Commission.
In Section 4. In the comfort women victim suits, the state examined the theory that there is no fault. We also examined the allegation that the individual claim has been terminated by the Korea - Japan Agreement and that the period of prescription had expired
As a result, the national unresponsive policy is based on the anachronistic beliefs of national anomalies before the Meiji Restoration, and the theoretical foundation is weak, and the individual claim can not be included in the Korea - Japan Agreement for the individual claim.
The statute of limitations corresponds to suspension of the period until the Korea-Japan agreement, and subsequent disputes between the two countries over the interpretation of the bilateral agreement between Korea and Japan constitute grounds for objective disability in exercising the right to claim compensation for the comfort women victim.
Therefore, the prescription of the victims of comfort women' should be counted from the time when the Supreme Court ruled in 2012 that the victim's right to claim damages is not covered by the Korea-Japan Agreement.
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