국가의 반인권적 불법행위와 소멸시효의 주관적 기산점 ― 부마민주항쟁 관련 하급심 판결을 계기로 ―

This study examines past human rights violation cases and extinctive prescription issues, focusing on the litigation cases related to the Bu-Ma Democraitc Protests. With the recent Constitutional Court decision of 2014Hun-Ba148, it has become an important issue to ‘protect by setting a reasonable starting point’ against the nation’s plea of the prescription completion. As pointed out in the decision, to deal with civil settlement of past human rights violation cases and extinctive prescription issues, it is essential to understand the specificity of past events as a precondition. Judgment on the subjective starting point without unconstitutionality of the court interpretation on Article 166 (1) of the Civil Code, which indirectly criticized by the Constitutional Court, is also asked to make a case. Thus, this article aims to examine the meaning of ‘the date of becoming aware of the damages and the identity of the person(s) liable for the damages’ of Article 766 (1) of the Civil Code, which is the subjective starting point of the extinctive prescription in state crimes against human rights. On the issues related to past history events, it is inappropriate to apply the legal obstacle principle to ‘the time when the rights can be exercised’ of Article 166 (1) of the Civil Code. The existence of factual obstacles in the exercise of rights should be considered as an element of judgment on the subjective starting point, not to interpret in the logic of Abuse Theory of Extinctive Prescription as done in the judicial precedents. Therefore, in the judgment A, B, and C under review of this article, the starting point of the plaintiffs’ right to claim damages should have been ‘the date they became aware of the fact that they were recognized as a related persons’ pursuant to the ‘Act on the Honor Restoration of And Compensation to Persons Related to Bu-Ma Democratic Protests.’