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TÒA ÁN NHÂN DÂN TỐI CAO
án lệ

Supreme Court Decision 2006Da17539 Decided July 12, 2013 【Damages】

(4/6/2018)

Supreme Court Decision 2006Da17539 Decided July 12, 2013 【Damages】

 

 

Main Issues and Holdings】

[1] How to determine international jurisdiction, and whether a court in the place where loss occurred has international jurisdiction in product liability cases against manufacturers making and selling goods

[2] Under Article 13(1) of the former Conflict of Laws Act, whether “a place where a cause occurred” includes a place where a loss resulted (affirmative)

[3] Meaning of manufactured goods subject to product liability - whether directly supplied goods to a specific consumer under contract is included (affirmative)

[4] Meaning of manufacturer subject to product liability - whether product liability exists for defects in the goods made and sold under the government’s direction in a supply contract (affirmative)

[5] Where a manufacturer designs and makes chemical goods containing toxic substance harmful to the human body, what does the duty of preventing risk entail, and if a manufacturer ignores the heightened duty to prevent risk and designs chemical goods likely to injure life and human body, whether the chemical goods are deemed as defective (affirmative in principle)

[6] Where Gap (Vietnam War veterans) sought product liability damages from defoliant manufacturers, and foreign corporation Eul and others (“Eul”), asserting that they contracted disease like chloracne from defoliants made by Eul and sprayed in the Vietnam War, the Court affirming the judgment of the court below that some soldiers suffered loss from a specific disease chloracne by exposure to defoliant TCDD

[7] Where epidemiological correlation between a specific risk factor and a non-specific disease is recognized, whether a probable causation between personal exposure and the non-specific disease occurrence can be deemed as proved (negative), and how to prove the probability in such a case

[8] Where Gap (Vietnam War veterans) sought product liability damages from defoliant manufacturers Eul foreign corp., etc. (“Eul”) asserting they contracted diabetes from defoliant made by Eul and sprayed in the Vietnam War, the Court found error of misapprehending the legal principle as to epidemiological causation in the court below’s holding that some soldiers suffered diabetes, a non-specific disease, by exposure to defoliant TCDD

[9] Meaning of, and criterion for, determining “when loss or tortfeasor is discovered” under Article 766(1) of the Civil Act, and who bears the burden to prove the base date (i.e., the party asserting the expiration of the statute of limitations)

[10] In a tort damages claim with time lag between the tort and the actual loss, the meaning of “a date when one knows about tort” as the basis for the long-term statute of limitations under Article 766(2) of the Civil Act, and who bears the burden of proof of “when objective and specific loss occurs” (i.e., the party asserting the expiration of the statute of limitations)

[11] Where Gap (soldiers of the Vietnam War) sought product liability damages from defoliant manufacturers Eul foreign corp. and other (“Eul”), asserting they contracted diseases like chloracne from defoliant sprayed in the Vietnam War, and where Eul raised the statute of limitations defense, the case holding that the statute of limitations defense against some soldiers is abuse of rights, but not as to those who filed a preliminary attachment motion or lawsuit after three years from the defoliant patient registration

[12] Whether the causation between the tort and the loss in a damages claim can be acknowledged proportionally (negative)

 

Summary of Decision】

[1] International jurisdiction is determined based on the fundamental ideology of achieving equity among parties to the lawsuit, and the judicial propriety, expedition, and economy. Specifically, not only personal interests, such as equity, convenience, and foreseeability among parties to the lawsuit, but also the court or state interests, such as the judicial propriety, expedition, and efficiency, as well as the effectiveness of the judgment, shall be considered. The selection of the protected interests out of a diverse pool shall be reasonably determined based on objective criteria of substantial relation between the court location and the parties, and between the court location and the disputed issues of individual cases. Especially in product liability cases against manufacturers making and selling the goods, the court of the place where the loss occurred has international jurisdiction if there is a substantial relation between a manufacturer and the loss, to such an extent that the manufacturer can reasonably anticipate a lawsuit at that court.

[2] Under Article 13(1) of the former Conflict of Laws Act (amended by Act, No. 6465 of Apr. 7, 2001), the establishment and validity of a tort claim in a conflict of laws case involving foreign elements should be determined by the law of the place where the facts underlying the claim arose, which includes not only the place of tort, but also the place of loss.

[3] Manufactured goods are those movable properties offered for the stream of commerce as produced or processed by adding design and processing to raw materials in a direct supply to a specific consumer based on a contract, as well as to unspecified, general consumers through multiple commercial distribution stages.

[4] A manufacturer subject to product liability is an enterpriser who makes, processes, or imports manufactured goods for a living, or holds oneself out as such by name, brand, trademark, or other distinctive marks. Product liability also arises for those enterprisers that manufactured and sold any defective product according to government instructions under a supply contract with the government.

[5] Where a manufacturer designs and makes chemical goods containing toxic substance harmful to the human body, if: the users and then neighbors can be continuously and repeatedly exposed to them in light of the purpose and method of then usage; the users’ life and body may face a risk of harm by a continuous and repeated exposure, in contrast to the toxic substance’s miniscule functional efficacy; and it is hard for the users to avoid the risk unless the manufacturer takes risk-averting measures beforehand, then, a manufacturer has a heightened duty to prevent risks. In such a case, a manufacturer should remove and minimize the potential risks through strict safety check on the manufactured goods and investigation and research with the latest technology available at the pertinent time point. If suspicion and concerns remain as to whether removal and minimization of the risk had been done properly and the risk cannot be warned to actual users properly, the chemical goods should not be circulated until the removal and minimization of the risk are confirmed to the extent that safety is sufficiently secured. Thus, if a manufacturer ignores the heightened duty to prevent risks and designs chemical goods likely to injure life and human body, barring special circumstances, the chemical goods are deemed as having a defect in design, as they lacked safety ordinarily anticipated under the general societal norms or values.

[6] Where Gap (Vietnam War veterans) sought product liability damages from defoliant manufacturers Eul foreign corp., etc. (“Eul”), asserting that they contracted disease like chloracne from defoliants made by Eul and sprayed in the Vietnam War, the Court affirmed the judgment below holding that soldiers suffered injury from chloracne by exposure to defoliant TCDD sprayed and the residual defoliant TCDD in the area they were stationed during the Vietnam War, on the ground that the probability is acknowledged that some veterans may have developed chloracne, a specific disease, due to exposure to defoliant TCDD, in light of relation between individual sensitivity to defoliant TCDD and chloracne occurrence, and the period between exposure and injury occurrence.

[7] In non-specific disease cases, despite recognition of the epidemiological correlation between the factor and the non-specific disease, the causal relation between personal exposure and non-specific diseases’ occurrence cannot be deemed as proved. It shall be proven that the probability of non-specific disease’s occurrence is considerably higher in the exposed group than in the non-exposed one by epidemiological research conducted on both groups; and that the non-specific diseases were probably caused by the specific risk factor based on additional proofs, such as the exposure period, degree, occurrence time, health condition prior to the exposure, lifestyle, changes in the disease condition, and family health history, etc.

[8] Where Vietnam War veterans (“Gap”) sought product liability damages from defoliant manufacturers Eul foreign corp., etc. (“Eul”), asserting they contracted diabetes from defolians made by Eul and sprayed in the Vietnam War, the case finding misapprehension of the legal principle on epidemiological causation in the court below’s holding that some soldiers suffered the injury of diabetes, a non-specific disease, by exposure to defoliant’s TCDD, since the probability cannot be acknowledged that an individual non-specific disease was due to defoliant exposure sprayed in the Vietnam War.

[9] Article 766(1) of the Civil Act established a time limit of three years for claim for damages, based on the date when a loss or a tortfeasor has been discovered, which means the date when a victim or his/her legal representative came to know the loss or the tortfeasor practically and specifically. A mere presumption or suspicion of loss occurrence is not sufficient, but existence of tortfeasor, loss occurrence, causation between the act, and loss as tort elements, should be known at the date. Such date shall be determined reasonably in light of objective circumstances and the situation enabling damages claim. The party asserting the benefit of expiration of the statute of limitations bears the burden to prove the base date.

[10] Under Article 766(2) of the Civil Act, a cause of action for damages claim expires after ten years from the date of tort. In case of a tort damages claim which has time lag between tort and the actual loss, “the date of tort” means the time when the loss occurs objectively and specific ally, i.e. when loss occurrence is actually realized (see Supreme Court Decision 97Da36613, May 8, 1998), and it shall be proved by the party asserting the benefit of expiration of the statute of limitations.

[11] Where Gap (Vietnam War veterans) sought product liability damages from defoliant manufacturers Eul foreign corp., et al. (“Eul”), asserting they contracted diseases like chloracne from defoliant sprayed in the Vietnam War, and Eul raised the statute of limitations defense, the case held that, since soldiers for whom the the long-term statute of limitations have run from then chloracne occurrence to the preliminary attachment of Eul’s patent rights or lawsuit against Eul, etal., had an objective obstacle hindering damages claim until they became aware of their cause of action through then defoliant patient registrations, and sinel the rest of the soldiers except some also had considerable hardship in exercising then rights by preliminary attachment or lawsuit within the Civil Act’s short term-statute of limitations period, Eul’s statute of limitations defense is ejected as an abuse of rights against the good faith principle, but that the defense is not an abuse of rights as to those who filed a preliminary attachment motion or a lawsuit after three years from then defoliant patient registration.

[12] Causation between a tort and a loss occurrence in damages claim suit is either acknowledged or denied. Thus, causation cannot be acknowledged proportionally. The so-called proportional causation theory is rejected.

Reference Provisions】[1] Article 2 of the Private International Act / [2] Article 13(1) of the former Conflicts of Law Act (amended by Act No. 6465 of Apr. 7, 2001) (current Article 32(1) of the Private International Act) / [3] Article 2 subparag. 1 and Article 3(1) of the Product Liability Act (“PLA”) / [4] Article 2 subparag. 3 and Article 3(1) of the PLA / [5] Article 2 subparag. 2(b) and Article 3(1) of the PLA / [6] Article 3(1) of the PLA, Article 750 of the Civil Act / [7] Article 750 of the Civil Act / [8] Article 3(1) of the PLA, Article 750 of the Civil Act / [9] Article 766(1) of the Civil Act, Article 288 of the Civil Procedure Act / [10] Article 766(2) of the Civil Act, Article 288 of the Civil Procedure Act / [11] Articles 2, 162, 766(1) and (2) of the Civil Act / [12] Article 750 of the Civil Act

Article 2 of the Private International Act (International Jurisdiction)

(1) In case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. In this case, the court shall obey reasonable principles, compatible to the ideology of the allocation of international jurisdiction, in judging the existence of the substantive relations.

(2) A court shall judge whether or not it has the international jurisdiction in the light of jurisdictional provisions of domestic laws and shall take a full consideration of the unique nature of international jurisdiction in the light of the purport of the provision of paragraph (1).

Article 32 of the Private International Act (Torts) (1) A tort shall be governed by the law of the place where it occurred.

Article 2 of the Product Liability Act (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term “product” means all movables, industrially manufactured or processed, even though incorporated into another movable or into an immovable;

2. The term “defect” means the defect of any product in manufacturing, design or expression falling under any of the following items or the lack of safety that the product ordinarily should provide: (b) The term “defect in design” means the lack of safety caused by the failure of the manufacturer to adopt a reasonable alternative design in a situation that any damage or risk caused by the product would otherwise be reduced or prevented; and

3. The term “manufacturer” means a person falling under any of the following items: (a) A person who is engaged in a business of manufacturing, processing or importing any product; and

Article 3 of the Product Liability Act (Product Liability) (1) A manufacturer shall be liable for either damage of death or personal injuries, or damage to any item of property (other than the defective product itself) which is suffered by any person, due to a defect of the product.

Article 2 of the Civil Act (Trust and Good Faith)

(1) The exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith.

(2) No abuse of rights shall be permitted.

Article 162 of the Civil Act (Extinctive Prescription of Claims or Property Right)

(1) The extinctive prescription of a claim shall become complete if not exercised for a period of ten years.

(2) The extinctive prescription of property rights, other than a claim and ownership, shall become complete if not exercised for a period of twenty years.

Article 750 of the Civil Act (Definition of Torts) Any person who causes losses to or inflicts injuries on another person by an unlawful act, willfully or negligently, shall be bound to make compensation for damages arising therefrom.

Article 766 of the Civil act (Prescription in respect of Right to Claim for Damages)

(1) The right to claim for damages resulting from an unlawful act shall lapse by prescription if not exercised within three years commencing from the date on which the injured party or his agent by law becomes aware of such damage and of the identity of the person who caused it.

(2) The provisions of paragraph (1) shall also apply if ten years have elapsed from the time when the unlawful act was committed.

Article 288 of the Civil Procedure Act (Facts not Requiring Attestation) The facts confessed by the parties in the court and the evident facts do not require any attestation: Provided, That confession contrary to the truth may be revoked when it is attested that it has been made due to any mistake.

Reference Cases】[1] Supreme Court Decision 93Da39607, Nov. 21, 1995 (Gong1996Sang, 26), Supreme Court Decision 2002Da59788, Jan. 27, 2005 (Gong2005Sang, 294) / [2] Supreme Court Decision 93Da18167, Jan. 28, 1994 (Gong1994Sang, 818), Supreme Court Decision 2005Da75071, Apr. 24, 2008 (Gong2008Sang, 759) / [9] Supreme Court Decision 99Da42797, Sep. 14, 2001 (Gong2001Ha, 2219), Supreme Court Decision 2000Da22249, June 28, 2002 (Gong2002Ha, 1777), Supreme Court Decision 2010Da13282, Mar. 10, 2011 (Gong2011Sang, 708) / [10] Supreme Court Decision 91Da41880, May 22, 1992 (Gong1992, 1969), Supreme Court Decision 2005Da55312, Nov. 16, 2007 (Gong2007Ha, 1922), Supreme Court Decision 2010Da54566, Oct. 30, 2012 (Gong2012Ha, 1590)

 

Plaintiff (Designated Party)-Appellee-Appellant】Plaintiff 1 and 9 others (Attorney Baek Young-yeop, Counsel for Plaintiff-appellee-appellant)

Defendant-Appellant-Appellee】Dow Chemical Company and 1 other (Law Firm Hwang Mok Park (HMP), etc., Counsel for Defendant-appellant-appellee)

Judgment of the court below】Seoul High Court Decision 2002Na32662 decided January 26, 2006

Disposition】1. The portion of the judgment below holding against Defendants is reversed, except the part related to the designated parties Nos. 559, 598, 626, 1082, 2196, 3750, 3818, 4865, 5087, 5686, 6136, 6445, 9562, 10340, 10410, 10565, 11737, 12248, 12835, 12931, 13053, 13801, and 14465 listed in the annexed list No. 3 of the judgment below, and the reversed portion is remanded to Seoul High Court.

2. Plaintiffs (designated parties)’ appeal and Defendant’s remaining appeals are all dismissed.

3. Among the costs of appeal, the portion incurred between the designated parties listed in the foregoing paragraph 1 and Defendant is assessed against the pertinent appellants respectively.

Reasoning】The grounds of appeal (for supplemental appellate brief not timely filed, only to the extent of supplement) are examined as follows.

1. Defendants’ grounds of appeal

A. Misapprehension of legal principle as to international jurisdiction

International jurisdiction is determined based on the fundamental ideology of achieving equity among the parties to the lawsuit, and the judicial propriety, expedition, and economy. Specifically, not only personal interests, such as equity, convenience, and foreseeability among the parties to the lawsuit, but also the court or state interests, such as the judicial propriety, expedition, and efficiency, as well as the effectiveness of the judgment, shall be considered. The selection of the protected interests out of a diverse fool shall be reasonably determined based on the objective criterion of a substantial relation of the court location with the parties and the disputed issues of individual cases (see Supreme Court Decision 2002Da59788, Jan. 27, 2005, etc.). Especially in product liability cases against manufacturers making and selling the goods, the court of the place where the loss occurred has international jurisdiction if there is a substantial relation between a manufacturer and the place where the loss, to such an extent that the manufacturer could reasonably anticipate being sued at the court of the place the where loss occurred (see Supreme Court Decision 93Da39607, Nov. 21, 1995, etc.).

The court below established the following facts. The designated parties are members of the military units of the Repulic of Korea (“Korea”) and were dispatched to Vietnam during the 2nd Vietnam War (“the Vietnam War”), or their bereaved. They are Korean citizen, residing in Korea. The designated parties filed this product liability lawsuit against Defendant making and selling defoliant - a blend of tactical herbicides the U.S. military sprayed in the Vietnam War to remove trees and dense tropical foliage that provided enemy cover - with the assertion that they were exposed to defoliant sprayed at military service areas during the Vietnam War and various diseases developed upon return to Korea. Defendants could anticipate being sued for product liability in Korea since they knew of Korean soldiers’ service in the Vietnam War and if Korean soldiers exposed to defoliant fell ill after then return to Korea, they may bring a case against Defendant for product liability in Korea. The military service records of soldiers who served in the Vietnam War and then disease records exist in Korea, of which the quantities were much larger than foreign documents which need translation. Damages assessment data are easy to be collected in Korea. As a participating state in the Vietnam War, Korea has a legitimate interest in the dispute related to Korean soldiers. In light of the foregoing, the court below decided that Korea has international jurisdiction since it has a substantial relation with the issues and the designated parties of this case.

In light of the foregoing legal principles and records, the above judgment below is just and there is no error in the misapprehension of the legal principle as to international jurisdiction as otherwise asserted in the ground of appeal.

B. Misapprehension of legal principle as to applicable law

Under Article 13(1) of the former Conflict of Laws Act (amended by Act. No. 6465 of Apr. 7, 2001), the establishment and validity of a tort claim in a conflict of laws case involvirg foreign elements should be determined by the law of the place where the facts underlying the claim arose, which includes not only the place of tort, but also the place of los (see Supreme Court Decision 93Da18167, Jan. 28, 1994, etc.).

Korea is the place where the loss of this case occurred, and as seen in the above, as long as the Korean court has international jurisdiction over the lawsuit of this case, Korean law is the applicable law to the product liability of this case.

The judgment below to the same purport is just and there is no error in the misapprehension of legal principle as to the applicable law, as otherwise asserted in the ground of appeal.

C. Misapprehension of legal principle as to product liability

(1) Whether defoliant is manufactured goods

Manufactured goods are those movable properties offered for the stream of commerce as produced or processed by adding design and processing to raw materials. It includes a direct supply to consumers under a supply contract with a specific consumer, as well as a supply to unspecified, general consumers.

The court below is just in finding that defoliant was manufactured and sold in large quantites under a contract with the U.S. government, but was used by unspecified soldiers of the Vietnam War, and constitutes manufactured goods subject to product liability. There is no error in the misapprehension of the legal principle as to manufactured goods subject to product liability, as otherwise asserted in the ground of appeal.

(2) Whether Defendants constitute a manufacturer subject to product liability

A manufacturer subject to product liability is an enterpriser who makes, processes, or imports manufactured goods for a living, or holds oneself out as such by name, brand, trademark, or other distinctive marks. A manufacturer is subject to product liability also in case of making and selling any defective product pursuant to the government’s direction under a supply contract with the government.

The court below justly held that Defendants have the status of manufacturer as long as they made defoliant and sold it to the U.S. government pursuant to the foregoing legal principle. There is no error in the misapprehension of legal principle as to the status of a manufacturer or manufactured goods, as otherwise asserted in the ground of appeal.

(3) Defect of defoliant as manufactured goods

(A) Where a manufacturer designs and makes chemical goods containing toxic substance harmful to the human body, if: the users and then neighbors can be continuously and repeatedly exposed to them in light of the purpose and method of then usage; the users’ life and body may fact a risk of harm by a continuous and repeated exposure, in contrast to the toxic substance’s miniscule functional efficacy; and it is hard for the users to avoid the risk unless the manufacturer takes risk-averting measures beforehand, then, a manufacturer has a heightened duty to prevent risks. In such a cass, a manufacturer should remove and minimize the potential risks through strict safety check on the manufactured goods and investigation and research with the latest technology available at the pertinent time point. If suspicion and concerns remain as to whether removal and minimization of the risk had been done properly and the risk can not be warned to actual users properly, the chemical goods should not be circulated until the removal and minimization of the risk are confirmed to the extent that safety is sufficiently secured.

Thus, if a manufacturer ignores the heightened duty to prevent risks and designs chemical goods likely to injure life and human body, barring special circumstances, the chemical goods are deemed as having a defect in design, as they lacked safety ordinarily anticipated under the general socied norms or values.

(B) The court below’s reasoning and records revealed as follows. TCP (trichlorophenol) is produced at the previous stage before defoliant’s raw material (2,4,5-T) is produced, and during the process it produces side-product 2,3,7,8-TCDD (2,3,7,8-tetrachlorodibenzo-p-dioxin, hereinafter referred to as “TCDD”). TCDD is not effective in weeding, and defoliant is contaminated by it unless eliminated during the process. Defendant knew exposure to defoliant containing TCDD harms human body at the time when they produced and sold defoliant to the U.S. government. Defendant Dow Chemical (“Defendant Dow”) knew chloracne may occur if exposed repeatedly to 1 ppm TCDD. It is suspected that TCDD less than 1 ppm also could cause harm to human body, based on animal experiments. Defendant knew or could have known that defoliant made and sold during the Vietnam War would be sprayed to the Vietnam War soldiers’ military service area, and the soldiers could be continuously and repeatedly exposed to TCDD; Defendant could not warn about TCDD’s danger to human body and give safety instruction pursuant to the U.S. government’s direction, and then, the soldiers of the Vietnam War without knowing it could not avoid the risk. Defendant Dow developed the gas chromatography analysis method to measure contents of TCDD in 2,4,5-T to the level below 1 ppm and set up the manufacturing instruction to reduce it below1 ppm. It could have drastically reducing the risk of TCDD pollution by removing it through the waste water process during the 2,4,5-T production. Defendant Monsanto Co. (“Monsanto”) did not set up manufacturing criterion regarding TCDD in 2,4,5-T at the time of making and selling defoliant. But it knew harmfulness of TCDD, Dow’s gas chromatography analysis method, possibility of reduction of TCDD pollution risk by removing it by adding the waste water process in the 2,4,5-T production process. On the other hand, at the time when Defendant supplied defoliant to the U.S. government, Hercules, another weed killer company, made defoliant with content of TCDD in 2,4,5-T below 1 ppm by adopting the different process.

(C) In light of the foregoing legal principle, Defendant had a heightened duty to prevent risks where they should check TCDD’s harm to human body and defoliant’s stability at the latest technological level during the Vietnam War, and to remove and minimize possible risks through investigation and research; defoliant should not be circulated unless safety is secured. Nonetheless they circulated it without setting the limit below 1 ppm or even not setting the criterion at all in this regard. Thus, Defendant defoliant made and sold during the Vietnam War is defective in design as the heightened duty to prevent risk was breached and it was devoid of safety ordinarily anticipated under the general societal norms or values.

Although the instruction of its reasoning was not entirely without room to be desired, the conclusion of the judgment below finding design defect in defoliant which Defendant manufactured and sold is just, and there are no errors in the misapprehension of legal principle as to the defect of manufactured goods or as to the burden of proof, or in the violation of the principle of pleading which affected the conclusion of the judgment, as otherwise asserted in the ground of appeal.

(4) Assertion of immunity based on development risk

Where a manufacturer can not find a defect at the scientific and technological level at the time of supply of manufactured goods, barring extraordinary circumstances, product liability due to defect may not be imposed since a manufacturer could not foresee the occurrence of the result.

However, Defendant foresaw or could have foreseen the risk of harm to life and human body from a repetitive exposure to TCDD, but violated its heightened duty to prevent risks. Thus, they were not unable to find defoliant’s defect at the scientific and technological level at the time of making and selling the product. Thus, Defendant’s assertion of immunity based on such premise is not accepted.

Although the instruction of its reasoning was not entirely without room to be desired, the judgment below rejecting Defendant’s assertion of immunity based on development risk is just, and there is no error in the misapprehension of legal principles as to the breach of duty of care or immunity, as otherwise asserted in the ground of appeal.

(5) Assertion of immunity based on compliance with statutory standards

The court below rejected Defendant’s immunity assertion based on compliance with statutory standards on the grounds that, when Defendant made and sold defoliant, the U.S. law had not yet provided, criterion regarding TCDD content in defoliant made with 2,4,5-T, and no standard had vet been set for a supply contract or manufacturing specifieations; thus, the defect in defoliant has nothing to do with compliance with the U.S. Defense Production Act or with the supply contract terms based on the Act; rather, Defendant’s fault in not taking sufficient safety measures had been the cause of the injury. Thus, the court rejected Defendant’s assertion of immunity based on compliance with statutory standards.

In light of the records, the above judgment below is just and there is no error in the misapprehension of legal principle as to the breach of duty of care or immunity, as otherwise asserted in the ground of appeal.

D. Misapprehension of legal principle as to causation

(1) Causation between defoliant exposure and chloracne as a specific disease

The court below acknowledged that chloracne occurred to the designated parties serving in the Vietnam War after their military service ended, and chloracne is a so-called specific disease from exposure to TCDD contained in defoliant.

Further, the court below reasoned that, upon an overall consideration of such factors as the influence of personal sensitivity to defoliant’s TCDD on whether and in what form the disease develops, the time from the exposure to chloracne occurrence, the possibility of occurrence of a chronic chloracne, the time from the designated parties’ completion of military service in the Vietnam War to chloracne occurrence, chloracne’s occurrence frequency in Korea, the research outcome on the Korean waste incineration quantity or wasete disposal rate and the serum TCDD concentration of waste disposal laborers and surrourdine residents, and the designated parties’ possibility of having been exposed to TCDD environmentally in Korea after their return from Vietnam, it is highly probable that the designated parties developed chloracne, a specific disease, due to exposure to defoliant’s TCDD during then military service in the Vietnam War. Without any counter-evidence to override the probability, the court below determined that the designated parties suffered injury of chloracne by exposure to defoliant TCDD sprayed or its residue in the military area during the Vietnam War.

In light of the records, the above judgment below is just and there is no error in the misapprehension of legal principle as to causation or probability against the law of logic and experience or in excess of the limit of free evaluation, of evidence as otherwise asserted in the ground of appeal.

(2) Causation between exposure to defoliant and non-specific, diseases

(A) The court below found as follows. The influence mechanism of TCDD contained in defoliant on human body is not yet clear pathologically or by clinical research; and human body experiment is not possible. In such a case, a collective observation of defoliant-exposed persons may reveal an epidemiological causation between TCDD and the disease. On this basist, since the disease developed after TCDD reached the individual victim, a reasonable probability can be recognized that the individual victim’s disease was developed due to the exposure to TCDD.

Further, the court below found as follows. The U.S. National Academy of Sciences report on the association between diseases and exposure to defoliant is trustworthy in its expertise, compreheusiveness, scientific grounding, and objectivity. There is an enough ground for acknowledging an epidemiological causation between exposure to defoliant and those diseases with sufficient evidence to acknowledge causal association with defoliant exposure, as well as those other diseases with suggestive but limited evidence, such as: non-Hodgkin’s lymphoma, soft tissue sarcomas, chloracne, PCD, Hodgkin’s disease, respiratory cancer, larynx cancer, carcinoma of trachea, multiple myeloma, prostate cancer, diabetes mellitus type 2 (11 diseases except chloracne referred to as “non-specific diseases of this case”). In light of Korean soldiers’ military service area and duty, spray area of defoliant with harmful element, the method and quantity, TCDD environmental residue, absorption to human body and process, etc., there is a reasonable probability that the pertinent designated parties who served in the Vietnam War from Jan. 1965, when defoliant began be sprayed, to Mar. 1973, when Korean troops pulled out, were exposed, directly or indirectly, to defoliant TCDD sprayed or its residue in the area.

Further, the court below reasoned that, since Plaintiffs (the designated parties, “Plaintiffs”) had proved the aforementioned high probability of causation that the pertinent designated parties developed diseases upon then exposure to TCDD, Defendants can only exempt themselves by disproving it by counter-evidence, such as that the pertinent designated parties were exposed to TCDD’s content below the disease-triggering level; that their disease occurrence rate is at or below that of the non-exposed group; or that their diseases were triggered by an entirely other cause. Yet, there was no counter-evidence deserving of acknowledgement.

As such, the court below held that the pertinent designated parties suffered injury of their diseases from exposure to defoliant TCDD made by Defendant, sold to the U.S. government, and sprayed during the Vietnam War.

(B) However, the foregoing judgment below is hard to accept.

1) Epidemiology analyzes disease occurrence, distribution, extinction, and its cause as collective phenomena and establishes the statistical correlation between them and diverse natural and social factors with a view to finding a method to prevent and reduce the occurrence of the disease. Thus, it does not inquire into the cause of an individual’s disease. Although the epidemiological correlation between risk factors and the disease exists, it does not reveal the personal cause of a disease as a member of the group. If disease’s occurrence rate in the group exposed to the risk factor is higher than that of the non-exposed group, probability of such factor as the cause can be inferred depending on the proportion of higher probability.

On the other hand, unlike “specific diseases” occurring due to a specific cause and showing clear connection between cause and result, non-specific diseases’ cause and mechanism are complicated and triggered by a combination of innate factors like genetics and the physical nature of human body, etc., as well as acquired factors like drinking, smoking, age, eating habit, occupation, and environment. In non-specific disease cases, despite epidemiological correlation between the specific risk factor and the non-specific disease, since individuals may have been exposed to other factors as well, epidemiological correlation merely refers to a higher probability of non-specific disease’s occurrence, but it does not prove that the risk factor is the cause of the occurrence of the disease.

Thus, in non-specific disease cases, despite recognition of the epidemiological correlation between the factor and the non-specific disease, the causal relation between personal exposure and the non-specific disease’s occurrence can not be deemed as proven. It shall be proven that the probability of non-distinct disease’s occurrence is considerably higher in the exposed group than in the non-exposed one by an epidemiological research conducted on both groups; and that the non-specific disease was probably caused by the specific risk factor based on additional proofs, such as the exposure period, degree, occurrence time, health condition prior to the exposure, lifestyle, changes in the disease condition, and family health history, etc.

2) The reasons in judgment below are examined pursuant to the foregoing legal principles and the records.

Most pertinent designated parties’ non-specific diseases such as diabetes occurred by innate or acquired factors, which is not a specific disease caused only by exposure to defoliant’s TCDD.

The report of the U.S. National Academy of Sciences - the basis for the judgment below - was prepared under the Agent Orange Act of 1991, Public law 102-4, to be submitted to the U.S. Congress and the Ministry of Patriots-Veterans Affairs with the purpose to prepare the basis for the compensation and assistance of veterans who asserted occurrence of several diseases from exposure to defoliant.

The above report made it clear that it only revealed the statistical association of the exposure to defoliant with the increased risk of occurrence of the non-specific diseases of this case, but that no causation exists between the two. Further, the statistical association here means merely the association between exposure to defoliant in the general population and its consequences, and thus, does not mean the possibility that a certain individual’s disease is associated with, or triggered by, exposure to defoliant.

Further, the foregoing report did not conduct a direct epidemiological research specifically on Korean or American soldiers as a group by comparing them with other, general group. Rather, the report merely acknowledged the statistical association between defoliant exposure and the non-specific disease of this case, based on its analysis of the epidemiological accomplishments of the existing literature on those population groups exposed to industrial and environmental dioxins.

For this reason, the report says it is unable to specify whether the occurrence frequency of non-specific diseases of this case is higher among the soldiers having served in the Vietnam War than ordinary people; if so, by how much; and how much the risk of occurrence of non-specific diseases of this case increases due to the exposure to defoliant.

Thus, merely because there exists a statistical association between defoliant exposure and the non-specific diseases of this case, and the pertinent designated parties of the Vietnam War contracted the non-specific diseases of this case, necessarily means that the probability can be recognized that each personal disease of the pertinent designated parties occurred due to the exposure to defoliant sprayed during the Vietnam War. This conclusion does not change, even if it is added that the pertinent designated parties are highly likely to be exposed, directly or indirectly, to defoliant’s TCDD sprayed on their military service areas during the Vietnam War or residue of the previous spray.

3) Nonetheless, the court below acknowledged that the pertinent designated parties probably attracted non-specific disease of this case due to the exposure to TCDD during military service in the Vietnam War, and held that unless Defendant rebutted such probability, the pertinent designated parties suffered injury from the non-specific diseases of this case by exposure to TCDD contained in defoliant that Defendant manufactured and sold.

In so doing, the judgment below erred in the misapprehension of legal principles as to epidemiological causation and probability, and as to the burden of proof, against the law of logic and experience, and in excess of the limit of free evaluation of evidence, which affected the conclusion. The ground of appeal assigning this error has merit.

E. Misapprehension of legal principle as to the statute of limitations defense

(1) Expiration of the statute of limitations under Article 766(1) of the Civil Act

(A) Article 766(1) of the Civil Act established a time limit of three years for claim for damages, based on the date when a loss or a tortfeasor has been discovered, which means the date when a victim or his/her legal representative came to know the loss or the tortfeasor practically and specifically. Mere presumption or suspicion of loss occurrence is not sufficient, but existence of tortfeasor, loss occurrence, causation between the act, and the loss as tort elements should be known at the date (see Supreme Court Decision 2010Da13282, March 10, 2011, etc.). Such date shall be determined reasonably in light of objective circumstances and circumstance enabling the damages claim (see Supreme Court Decision 2000Da22249, June 28, 2002, etc.). The party asserting benefit of expiration of the statute of limitations bears the burden to prove the base date (see Supreme Court Decision 99Da42797, Sep. 14, 2001, etc.).

(B) The court below reasoned as follows. When the soldiers served in the Vietnam War first began to demand loss compensation, it had not been based on proper grounds and thus it can not be seen that no practical and specific awareness about the injury from the exposure to defoliant had existed around that time to enable the exercise of a right to claim damages. Practical and specific awareness as to the causation between exposure to defoliant and their diseases came to exist when they were determined as defoliant after-effects patients and completed the defoliant after-effects patient registration pursuant to the former Act on Medical Care, etc. to Patients Suffering Actual or Potential after-effects of Defoliants (amended by Act No. 5147 of Dec. 30, 1995) and the Act on Assistance, etc. to Patients Suffering Actual or Potential after-effects of Defoliants (both referred to as “the Defoliant Act”). Thus, the court below held that among the designated parties listed in the judgment below’s annexed list No. 3, the short term statute limitations under Article 766(1) of the Civil Act did not expire as to those who filed a preliminary attachment motion on Defendant patent rights or those who filed the suit of this case before three years passed from the defoliant after-effects patient registration.

In light of the foregoing legal principle and the records, the court below is just in rejecting Defendant statute of limitations defense against the designated parties remaining excepting those as to whom the three years statute of limitations under Article 766(1) already lapsed from the defoliant patient registration date to the time of filing of the preliminary attachment (May 4, 1999) or the suit of this case (Sep. 30, 1999) although they developed chloracne from exposure to defoliant in the Vietnam War. There is no error in the misapprehension of legal principle as to the base date for the short term statute limitations under Article 766(1) of the Civil Act and the burden of proof in this regard as otherwise asserted in the ground of appeal.

(2) Whether the statute of limitations expired under Article 766(2) of the Civil Act

(A) Under Article 766(2) of the Civil Act, a damages claim right expires after ten years from the date when one knows about a tort. In case of a tort damages claim which has the time gap between the tort and the actual loss, “the date when one knows about a tort” means the time when objective and specific loss occurs, i.e. when loss occurrence is actually realized (see Supreme Court Decision 97Da36613, May 8, 1998), and such time point should be proved by the party who asserts the expiration of the statute of limitations (see Supreme Court Decision 91Da41880, May 22, 1992).

(B) The court below held that Defendant had the burden of proving the base date and rejected Defendant long term statute of limitations defense under Article 766(2) of the Civil Act, on the grounds that Defendant failed to prove the occurrence time of diseases excepting those diseases as to which 10 years were recognized to have lapsed by the time of preliminary attachment motion filing by some designated parties on Defendant patent rights on May 4, 1999 or filing of the suit of this case on Sep. 30, 1999.

In light of the foregoing legal principles and the records, the court below is just in rejecting the statute of limitations defense as to designated parties other than those as to whom 10 years under Article 766(2) of the Civil Act passed (“the designated parties for whom the long term statute of limitations expired”) by the filing time of a preliminary attachment motion or the suit of this case. There is no error in the misapprehension of legal principle as to base date for long term statute of limitations under Article 766(2) of the Civil Act and the related burden of proof as otherwise asserted in the ground of appeal.

(3) Whether the statute limitations defense against the designated parties as to whom the statute limitations expired constitutes abuse of rights

(A) Defense of statute limitations expiration by obligor is subject to principles of good-faith and prohibition against abuse of rights. If obligor made obligee’s exercise of right or the tolling of statute of limitations impossible or considerably difficult, or acted to make obligee believe taking of the measures as unnecessary; or obligee’s exercise of right is obstructed; or obligor showed no intent to use the statute of limitations defense once it expires, which obligee came to trust, and obligee exercised the right within the time period as obligor reasonably expected, then the statute of limitations defense is not allowed since it constitutes abuse of rights against the principle of good faith (see Supreme Court Decisions 2002Da32332, Oct. 25, 2002; 2012Da202819 (en banc Decision), May 6, 2013, etc.).

Nonetheless, denial of the statute of limitations defense based on the principle of good faith needs be limited to exceptional cases for the sake of legal stability, for purpose of securing fresh evidence, and encouraging a diligent right pursuit. Thus the foregoing reasonable time period shall be limited to a short term, barring special circumstances. Even where its extension is unavoidable, in tort damages claims cases, it shall not exceed 3 years as Article 766(1) of the Civil Act prescribes as the short term statute of limitations (see Supreme Court en banc Decision 2012Da202819, May 6, 2013).

(B) The judgment below and the records reveal the followings. Defendant as defoliant manufacturers took profits without taking risk prevention measures although they knew and could have foreseen that defoliant’s TCDD imposed risk to life and human body. As a result, Korean soldiers serving in the Vietnam War upon request by the Vietnamese and the U.S. governments suffered mentally and physically without any fault. They had hardship in knowing their chloracne was caused by defoliant since a full-fledged discussion started only from early 1990. Chloracne is hard to be distinguished from other dermatoses and they hardly could have been aware that they suffered injury due to exposure to defoliant. Even if a long time lapsed to the filing of the suit of this case from the return from the Vietnam War, Defendant cannot be seen as being obstructed from exercising their defense rights such that fresh evidence becoming unavailable in the suit of this case because of the passage of the time. Rather, in this case as time passed, results of the scientific researches have accumulated regarding the causation, and etc.

In light of the foregoing legal principle and the overall circumstances, etc., the designated parties for whom the long term statute of limitations expired can be seen as having practical obstacles so that they could not be objectively anticipated with the exercise of a damages claim right as to injury from defoliant until they had registered as defoliant patients; their skin disorder was diagnosed as chloracne, and they came to know that it was related to Defendant defoliant. Thus if the designated parties for whom the long term statute of limitations expired exercised their rights with the reasonable time limit after the aforementioned registration, Defendant cannot assert the defense of expired statute of limitations against the designated parties for whom the long term statute of limitations expired as it constitutes abuse of rights against the principle of good faith.

We accept the judgment below finding that among the designated parties who filed a preliminary attachment motion or the suit of this case after the defoliant patient registration, the designated parties remaining after excepting the designated parties Nos. 1725, 6586, and 9742 listed in the judgment below’s annexed list No. 3, had special circumstances imposing hardship on exercise of rights such as filing of a preliminary attachment motion or the lawsuit within the short time equal to that under the statute of limitations of the Civil Act after the registration as defoliant patients such that defoliant sprayed during the Vietnam War was made and sold by Defendant located in the U.S. which triggers review of international jurisdiction and applicable law, and evidence of TCDD’s harm to human body, defect of defoliant mostly existed in the U.S., and with those factors considered, the remaining designated parties are viewed as exercising their rights within the reasonable time period to reject the statute of limitations defense.

Thus despite somewhat inappropriate or insufficient reasons in this portion, the court below’s conclusion rejecting Defendant statute of limitations defense against the remaining designated parties is just and it did not err in the misapprehension of legal principle as to the abuse of right in the statute of limitations defense as otherwise asserted in the ground of appeal.

(C) On the other hand, a long term as well as short term statute of limitations expired for the aforementioned designated parties Nos. 1725, 6586, and 9742. We do accept the judgment below holding that Defendant statute of limitations defense is not allowed as abuse of rights since obstruction existed as to the aforementioned designated parties that they could not be expected to file a damages lawsuit related to the defoliant injury until the registration as defoliant patients.

Under the judgment below’s reasons, the aforementioned designated parties filed for a preliminary attachment or the suit of this case without a preliminary attachment after three years passed from the registration as defoliant patients, and no evidence exists to recognize the exercise of right before that time limit.

In light of above legal principle and the facts, the aforementioned designated parties became aware of the damages claim rights at the registration as defoliant patients, and the exercise of their rights became possible, and obstruction to the exercise of rights disappeared. But they exercised their rights by filing a preliminary attachment or the suit of this case without preliminary attachment only after three years passed and the short term statute of limitations expired. Thus Defendant statute of limitations defense does not constitute abuse of rights.

Nonetheless. the court below held the statute of limitations defense against the aforementioned designated parties constitutes abuse of rights.

The judgment below erred in the misapprehension of legal principle as to abuse of rights in the statute of limitations defense, which affected the conclusion of judgment. The ground of appeal assigning this error has merit.

F. Other grounds of appeal

(1) Misapprehension of legal principle as to government contract defense under the U.S. law

As long as Korean law applies, elements of a tort, capacity, effect of a tort, etc. shall be decided pursuant to Korean law. The U.S. law cannot be applied only for the immunity defense. The so-called government contract defense which is recognized only in the U.S. law cannot be accepted in this case.

The judgment below to the same purport is just and there is no error in the misapprehension of legal principle as to applicable law and government contract defense under the U.S. law as otherwise asserted in the ground of appeal.

(2) Whether the act was a justified act (justification defense)

The court below rejected assertion that unlawfulness is destroyed since Defendant manufactured and sold defoliant as part of business performance conforming to the relevant Act and subordinate statutes, on the grounds that Defendant financial profit motive outweighed their concern for safety of the U.S. soldiers, etc. and the act of manufacturing and selling of defective defoliant upon breach of the heightened duty of preventing risks does not have any social validity.

In light of the records, the above judgment below is just and there is no error in the misapprehension of legal principle as to justification against the law of logic and experience and in excess of the limit of free evaluation of evidence as otherwise asserted in the ground of appeal.

(3) Whether the act was coerced

In light of the records, the court below is just in holding that Defendant manufacturing and selling of defective defoliant cannot be seen as an unavoidable coerced act and there is no misapprehension of legal principle as to coerced act as otherwise asserted as the ground of appeal.

(4) Whether the act was a necessity

In light of the records, the court below is just in holding that Defendant manufacturing and selling of defective defoliant cannot be seen as a necessity to avoid imminent danger and there is no misapprehension of legal principle as to necessity as otherwise asserted as the ground of appeal.

(5) Assertion as to solatium assessment

The court should assess the amount of solatium in light of overall circumstances of the victim and tortfeasor. Solatium is assessed based on whether the victim can be compensated by tortfeasor as to the loss from the accident, and the amount of the award.

The court below considered the property loss of the designated parties of annexed list No. 3 of the judgment below is impossible or hard to ascertain or prove, which hinders compensation for restoration and for that ground, it increased solatium.

In light of the foregoing legal principle and the records, the judgment below is just regarding the designated parties who developed chloracne from exposure to defoliant and as to whom the statute of limitations has not yet expired. It did not err in the misapprehension of legal principle as to solatium assessment as otherwise asserted as ground of appeal.

Other grounds of appeal as to solatium assessment are merely related to the evidence selection and fact-findings which belong to the exclusive rights of the fact-finding court and they do not constitute legitimate grounds of appeal.

(6) Whether the principle of pleading as to determination of a base date for the damages for delayed payment is violated

The date of loss occurrence is the base date if distance exists between the date of occurrence of a tort and the occurrence of the loss (see Supreme Court Decision 2010Da76368, July 28, 2011).

The court below stated that the losses of the designated parties of annexed list No. 3 of the judgment below were realized when the diseases from exposure to defoliant developed and damages for delayed payment accrues from that point. Nonetheless, it awarded damages for delayed payment on the respective damages from the registration date as defoliant patients, based on circumstances in its reasoning.

The foregoing holding rather favors Defendant by adopting the base date later than the actual loss occurrence date. Thus, we reject Defendant assignment of error of violation of the principle of pleading regarding the base date against the designated parties with chloracne as to whom the statute of limitations has not yet expired.

(7) Whether other litigation procedures are violated

The Defendant asserted that the court below unfairly recommended submission of evidence; Defendant were given just one time of pleading defense after the reopening of pleading upon their request; and inquiry regarding evidence was conducted without the military or medical records revealed. But they merely relate to the court’s discretion or legitimate exercise of a right to demand explanation or evidence selection. or fact-finding which belongs to the exclusive authority of the fact-finding court. The grounds of appeal assigning those errors are without merit.

2. Plaintiffs’ grounds of appeal

A. As to violation of the rules of evidence, misapprehension of legal principle, and etc. regarding causation

(1) The court below reasoned as follows. Defoliant after-effects diseases including peripheral nerve disorder and Buerger’s disease lack proof for the recognition of epidemiological causal relation. Nonetheless, they were recognized as associated diseases for the sake of compensation or assistance at the veteran’s welfare dimension. Jenkin’s report’s investigation is a statement under oath made upon the request of the U.S. defoliant lawsuit’s Plaintiff and it is hard to view that Jenkins had special knowledge as to epidemiology and medicine and the selection process of data was also less objective. Prof. Kim Jung-soon’s epidemiology research report is low in reliability as to the selection process of exposed group, and it was not relied upon at the amendment of the Defoliant Act since its scientific value was questionable although the investigation had been based on the Defoliant Act. Thus, propriety of its epidemiological research method is hard to trust. The draft of the U.S. EPA is not proper as proof of epidemiological causation since it prohibited its quotation since it was a mere draft for the internal evaluation prior to its official publication. The report of the U.S. National Science Academy viewed that objective proof for causal association between peripheral nerve disorder and exposure to defoliant is insufficient, and particularly that it is impossible to decide whether it is directly caused by TCDD or secondary to the occurrence of diabetes. Additionally, the Plaintiffs’ Gap evidence No. 32 (WHO IARC’s article) and Gap evidence No.41-2 (Dioxin 2001 article) are excerpts related to cancer occurrence from dioxin and any substantial content regarding its epidemiological causation was not included. The Plaintiffs’ Gap evidence No.33-1 (dioxin calling for death) and Gap evidence No.33-2 (how Dow pollutes the earth) lack objectivity and trustworthiness since the NGO organizations edited previous epidemiological research results and prepared them for the environmental movement. The court below held that causation between defoliant and peripheral nerve disorder/Buerger’s disease among defoliant after-effects diseases is hard to be recognized based on the relevant provisions of the Defoliant Act and the aforementioned evidence, and there is no other evidence for its acknowledgment.

In light of the records, the above judgment below is just and there is no error in the misapprehension of legal principle as to causation against the law of logic and experience and in excess of the limit of free evaluation of evidence as otherwise asserted in the ground of appeal.

(2) Further, causation between a tort and a loss occurrence in a damages claim suit is either acknowledged or denied, and thus, causation cannot be acknowledged proportionally. We do not accept the so-called proportional causation theory.

The judgment below to the same purport is just and there is no error in the misapprehension of legal principle as to proportional causation as otherwise asserted in the ground of appeal.

B. Misapprehension of legal principle as to solatium amount assessment

(1) Damages for property loss and for mental distress are separate claims and the party shall specify each amount. The court also decides each claim’s merits based on the facts (see Supreme Court Decision 2006Da32569, Sep. 22, 2006, etc.). Solatium as damages for mental distress shall be determined by the fact-finding court’s discretion in light of diverse circumstances (see Supreme Court Decision 2004Da66001, June 23, 2005, etc.).

(2) In light of legal principles and records, the court below is just in not recognizing comprehensive solatium in lieu of compensation for property loss, and the court below’s solatium amount cannot be seen as underestimated. There is no error in the misapprehension of legal principle as to solatium amount assessment as otherwise asserted in the ground of appeal.

3. Reversed portion by this Opinion among the judgment below’s holdings against Defendant

A. Portion recognizing claims of the designated parties (from the annexed list No. 3 of the judgment below) having the diseases other than chloracne is reversed since the court below accepted the claims regarding the diseases as to which causation was not proved.

However, although partial acceptance of the claims of the designated parties No. 10,340, No. 12,835, No. 13,053, and No.13,801 in the same list who suffered from both chloracne and diabetes was erroneous as to diabetes (lacking causation), there is no ground for reversal since it is not an error affecting the otherwise just conclusion, since the court below’s assessment of solatium depending on the injury degree, its actual amount, and other facts on the records justifies the awarded amount of damages as to the foregoing designated parties even after the diabetes claim is not considered.

B. On the other hand, partial acceptance of claims by the designated parties No. 1,725, No. 6,586, and No. 9,742 in the annexed list No. 3 of the judgment below is reversed since the court partially accepted the claims since it decided Defendant statute of limitations defense as constituting abuse of rights, although it did not. It is erroneous and reversed.

C. In conclusion, among the portion which the court below held against Defendant, the remaining portion is reversed except The designated parties No. 1.082, No. 3,818, No. 9,562, No. 12,248, No. 13,053 in the annexed list No. 3 of the judgment below as to whom both of statute of limitations had not yet expired under Articles 766(1) and (2) of the Civil Act, and The designated parties No. 559, No. 598, No. 626, No. 2,196, No. 3,750, No. 4,865, No. 5,087, No. 5,686, No. 6,136, No. 6,445, No. 10,340, No. 10,410, No. 10,565, No. 11,737, No. 12,835, No. 12,931, No. 13,801, No. 14,465 in the same annexed list No. 3 as to whom the statute of limitations under Article 766(1) of the Civil Act had not yet expired, but the statute of limitations under its Article 766(2) expired, but Defendant statute of limitations defense constituted abuse of rights.

4. Conclusion

Therefore, among the portion where the court below held against Defendant, the portion is reversed excepting the part related to the designated parties’ claims which were partially accepted as stated in the foregoing section 3. C. The reversed portion of this case is remanded to the court below for further proceedings consistent with this Opinion and the Plaintiffs’ grounds of appeal and Defendant other grounds of appeal are all dismissed. It is decided as per Disposition by the assent of all participating Justices.

[Attachment] List of designated parties: omitted

 

Justices   Kim Shin (Presiding Justice)

  Min Il-young

  Lee In-bok (Justice in charge)

  Park Poe-young

 

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