‘과거사 국가배상청구 소멸시효 사건’에 대한 판례 평석

초록

A claim for damages against the state is subject to the relatively short prescription period of ‘three years from the date when the victim became aware of the damages and the perpetrator’ and ‘five years from the date of the illegal act’. This has long been an obstacle to the exercise of rights by the victims of past human rights violation cases. Therefore the Constitutional Court removed this obstacle by declaring the statutory provisions related to the extinctive prescription unconstitutional. The Constitutional Court decision 2014 Heonba 148 on August 30. 2018. clearly reaffirmed the state's constitutional duty to protect fundamental rights and enhanced its meaning, so that it deserves high praise. However, there were several contential issues in the light of the procedural law. First, there were conflicting views among the judges because the criteria for distinguishing between the adjudication of the constitutionality of statutes and the adjudication of the constitutionality of interpretation was not clear. The three judges rejected the admissibiltiy of the petitioner's constitutional complaint, because they believed that the petitioner filed against the interpretation of the statutory provisions, not against the statutory provisions themselves, whereas the remaining six judges didn’t agee with them. I think it should be regarded as a constitutional complaint against the norm insofar as the source of unconstitutionality can be attributed to the statutory provisions. According to this, the constitutional complaint in the case of the subject decision can be viewed as a dispute over the norm. Second, the claimant argued primarily that the application of the statutory provisons of the extinctive prescription to the past human rights violation cases itself unconstitutional and preliminarily that the application of the statutory provisons of the extinctive prescription to the past human rights violation cases is unconstitutional as long as an objective and factual obstacle hindered the excercise of the rights. In response, the Constitutional Court did not enter into judgment on the preliminary argument, although it substantially rejected the primary argument. Instead, Article 166 (1) and 766 (2) of the Civil Act were ruled unconstitutional. However, if the preliminary argument had been accpted, it would not have been necessary to make all of these articles unconstitutional, and it would have been better for a reasonable resolution of the matter.

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