2011년 대법원은 울산 보도연맹원 집단살해사건과 문경 석달마을 집단살해사건손해배상청구소송에서 국가의 소멸시효 항변을 물리치고 피해자들과 유족들의 주장을 인용하였다. 이 글은 두 판결과 후속판결들의 소멸시효에 관한 논리를 비판적으로 재구성하였다. 대체로 법원은 국가기관의 특수한 은폐행위, 추가적 불법행위 또는 입법 부작위 등을 이유로 소멸시효를 배제하였다. 법원은 국가기관의 신의칙 배반성을 강조하면서도 피해자의 권리를 구제하지 못한 사법부의 역사적 행태에 대해서는 이론적으로 침묵한다. 그러나 신의칙 위반성과 소멸시효의 배척 근거는 후속적인 불법행태나 불성실에서 찾을 것이 아니라 국가의 시민보호의무 위반과 법원의비구제 관행에서 찾아야 한다. 후속판결 중 가장 중요한 2013년 5월 16일자 대법원 전원합의체 판결은 새로운문제를 안고 있다. 이 판결이 시효기산점을 보상입법의 무산 시점으로 잡은 것은 흥미롭지만 이로부터 6개월 후 청구권을 상실한다는 견해는 완전한 억지다. 오히려 피해자들은 권리의 행사와 소멸시효에 대해 충분한 정보를 얻고 법적으로 대처할 수 있는 충분한 기회를 향유해야 하기 때문에 과거사정리법은 포괄적으로 시효를 배제하고 적절한 보상을 제공하려는 법률로 파악해야 한다. 법원은 집단살해의 문제에서 청구권을 시효로 소멸시키기 위해 견강부회할 것이 아니라 문제를 근본적으로 해결하려고 시도해야 한다. 집단살해의 피해자의 권리를 완전히 관철시켜 주는 것만이 문제를 근본적으로 해결하는 길이다. 시효를 통한 권리 배제 방침과 구제받을 피해자의 근본적 권리는 양립하지 않는다. 한마디로 집단살해에서 시효계산법은 산수가 아니라 규범적 역사학이다.

Ulsan and Munkyung Judgements by the Korean Supreme Court in 2011 are the monumental cases in the modern world history of transitional justice. In the genocide litigations, the Supreme Court declared that victims’ rights to compensation were not prescripted because the Government had concealed serious human rights violations and disturbed victims’ and their relatives’ access to the truth of massive killings. The responses of the subsequent courts to the above-mentioned decisions are contradictory regarding the issues of prescription in the litigations against massive killings. This essay aims to reconstruct critically the principle of bona fides in the exercise of rights regarding the compensation suits against the massive killing or genocide. The Supreme Court and other courts ordinarily declared Korean government legally responsible for the massive killings for the reasons that the Ministry of National Defence had concealed and oppressed the truth of human rights violations or that the National Assembly had not legislated the Special Compensation Act for the victims’ bereaved families. Also they found fault with other state organs in the external viewpoint, as if they had been a foreign court or international tribunal with regard to the massive killings during the Korean War. Instead, they should reflect or criticize their own traditions and cultures of legal professions which have never supported the victim’s rights in the massive killing committed during the Korean War. This point became more evident by the Munkyung abjudication. This article tries to critically reconstruct the ambivalent purposes expressed in the rulings by the Supreme Court. To do this, it is argued that ultimately the Korean Courts are as responsible as, to be precise, far more responsible than the agents like the Ministry of National Defence or National Assembly, for violating the principle of bona fides. This essay tries to reconstruct victims’rights to truth, justice and compensation under the perspective of the effective remedies. Its key point is summarized as ‘no statutory limitation without the effective remedies’. The Korean courts had established no effective remedies for the victims of massive killings before Ulsan Judgement. Therefore, it is now accepted that Ulsan Judgement and the ensuing Jindo Judgement have set a new beginning point of prescription beyond the prevalent notion in the past concerning the massive killings. The conclusion of this essay is that the purpose of the Truth and Reconciliation Act is to establish state responsibility for serious human rights violations and to prepare a long-term schedule for reparation to victims, contrary to the suppositions of Jindo Judgement.

Ulsan and Munkyung Judgements by the Korean Supreme Court in 2011 are the monumental cases in the modern world history of transitional justice. In the genocide litigations, the Supreme Court declared that victims’ rights to compensation were not prescripted because the Government had concealed serious human rights violations and disturbed victims’ and their relatives’ access to the truth of massive killings. The responses of the subsequent courts to the above-mentioned decisions are contradictory regarding the issues of prescription in the litigations against massive killings. This essay aims to reconstruct critically the principle of bona fides in the exercise of rights regarding the compensation suits against the massive killing or genocide. The Supreme Court and other courts ordinarily declared Korean government legally responsible for the massive killings for the reasons that the Ministry of National Defence had concealed and oppressed the truth of human rights violations or that the National Assembly had not legislated the Special Compensation Act for the victims’ bereaved families. Also they found fault with other state organs in the external viewpoint, as if they had been a foreign court or international tribunal with regard to the massive killings during the Korean War. Instead, they should reflect or criticize their own traditions and cultures of legal professions which have never supported the victim’s rights in the massive killing committed during the Korean War. This point became more evident by the Munkyung abjudication. This article tries to critically reconstruct the ambivalent purposes expressed in the rulings by the Supreme Court. To do this, it is argued that ultimately the Korean Courts are as responsible as, to be precise, far more responsible than the agents like the Ministry of National Defence or National Assembly, for violating the principle of bona fides. This essay tries to reconstruct victims’rights to truth, justice and compensation under the perspective of the effective remedies. Its key point is summarized as ‘no statutory limitation without the effective remedies’. The Korean courts had established no effective remedies for the victims of massive killings before Ulsan Judgement. Therefore, it is now accepted that Ulsan Judgement and the ensuing Jindo Judgement have set a new beginning point of prescription beyond the prevalent notion in the past concerning the massive killings. The conclusion of this essay is that the purpose of the Truth and Reconciliation Act is to establish state responsibility for serious human rights violations and to prepare a long-term schedule for reparation to victims, contrary to the suppositions of Jindo Judgement.

effective remedies, genocide, massive killing, prescription, principle of bona fides, reparation, Truth and Reconciliation Committee