The Regrettable Dismissal of a Damage Claim by Fired Dong-A Ilbo Journalists

[경향신문] 2011년 01월 19일(수) 오후 03:40|
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Seoul Central District Court last week ruled in favor of the defendant in a damages suit brought against the state, on grounds of unfair dismissal, by 133 members of a committee of former Dong-A Ilbo journalists that struggles to protect press freedom.

The court said, "The government at the time has a duty to pay compensation for the emotional pain suffered by the plaintiffs, because it committed illegal acts such as advertising crackdowns in order to get Dong-A Ilbo journalists fired, who resisted the media controls brought by the Revitalizing Reforms system. It also, however, dismissed the damages claim, saying, "The plaintiffs did not file a claim within the five-year damage claims period that began when the civilian government came to power in 1993, despite having been able to do so."

The committee stated its intention to appeal, saying, "We were not able to file a suit, because of insufficient evidence, until 2008, when the Truth and Reconciliation Commission conducted an investigation and revealed the truth."

Recently, cases such as that of the committee for press freedom in East Asia, where courts acknowledge negative prescription regarding institutional illegal acts committed by governments, have occurred frequently. There have been cases where primary rulings of expired claim periods have been overturned at secondary hearings, not to mention conflicting rulings on separate but similar cases.

Normally, in cases where a debtor makes the exercising of rights or the interruption of prescription by a creditor impossible or noticeably difficult before the completion of prescription, or cases where for some reason a creditor cannot, objectively, exercise his or her rights, the completion of negative prescription is not permitted.

Despite this, courts are applying excessively strict criteria when it comes to the suspension of negative prescription. One example regards deaths under suspicious circumstances in the military, where courts are only ceasing negative prescription in cases where the state actively fabricated the cause of death, for example by faking suicide in cases of murder. There have been cases of people being denied compensation despite unfair deaths, because of sub-standard investigations by military investigative organs.

This stems from the fact that courts equate crimes by the state with disputes among individuals. The Supreme Court does not regard refusing compensation on grounds of completion of negative prescription, even when the state has committed crimes that violate human rights, as an abuse of its rights.

It is utterly undesirable that victims are unable to receive damages even when illegal acts by the state are exposed. How is our government qualified to bang on about Korea being an advanced nation when it tries to wriggle out of its responsibility to provide compensation, even after it has abandoned its duty to protect its own people, on the grounds that its illegal acts were revealed too late?

The Supreme Court now needs to make active interpretations of cessation of negative prescription concerning state crimes, and sort out past conflicting rulings by lower courts.

At a time when public opinion is calling for suspension of statutes of limitations on inhumane crimes such as sexual assault against children, the excessively mean application of prescription when it comes to victims of state crimes cannot be anything other than judicial retrogression. (Ed. Jan 19, 2011)

http://kr.news.yahoo.com/service/news/shellview.htm?articleid=2011011915403518340&linkid=4&newssetid=1352