문헌자료[판결문] Judgment_(English) / 퐁니·퐁녓 사건 응우옌티탄 국가배상소송 2심 판결문(2025년 1월) 영어 번역본

판결문 한글본  판결문 베트남어 번역본  판결문 일본어번역본

[English below]

베트남전 퐁니·퐁녓 민간인학살 사건 관련 원고 응우옌티탄의 국가배상소송 2심 판결문(2025년 1월) 영문본을 공유합니다. 판결문 원본에서 비실명화된 버전을 번역한 것입니다. (게시물 하단에 판결문 번역본 첨부파일 다운로드)

번역을 맡아주신 한세영 님께 진심으로 감사드리며 <베트남전쟁 문제의 정의로운 해결을 위한 시민사회 네트워크>의 2025년 활동 기금에 후원 참여하여 이번 판결문 번역사업에 연대의 힘을 보내주신 시민 여러분께도 진심으로 감사의 인사들 드립니다.

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베트남전 민간인학살 피해자 퐁니 마을 응우옌티탄의 

국가배상소송 판결문을 전 세계에 전하며

베트남전쟁 시기였던 1968년 2월 12일, 베트남 중부의 퐁니·퐁녓 마을에서 한국군에 의해 주민 74명이 무차별적으로 살해당하는 일이 벌어졌습니다. 당시 만 7세였던 소녀 응우옌티탄(Nguyễn Thị Thanh)은 복부에 심각한 총상을 입고 살아남았지만 집단학살로 어머니와 언니, 남동생을 잃고 전쟁고아가 되었습니다. 사건 이후 50여 년이 지난 2020년, 응우옌티탄은 대한민국 법정의 문을 두드렸습니다. 자신과 가족에게 가해진 한국군의 전쟁범죄에 대해 한국 정부의 진실 인정과 책임을 요구한 국가배상소송을 제기한 것입니다.

한국에서는 1999년부터 본격적으로 베트남전쟁 시기 한국군에 의한 민간인학살 피해생존자와 유가족들의 목소리가 알려졌습니다. 시민사회에서는 베트남의 피해자와 연대해 한국 정부에 베트남전 진실규명과 사죄를 요구하는 ‘미안해요 베트남’ 운동이 시작되었습니다. 그러나 20년 넘게 한국 정부는 침묵과 외면으로 일관했습니다. 응우옌티탄의 소송은 무책임했던 한국 정부를 피고로 법정에 세워 한국 사회를 다시금 베트남전쟁 문제와 직면하게 했습니다. 

퐁니·퐁녓학살은 한국군 민간인학살 사건들 가운데 가장 많은 증거 자료와 증인이 존재합니다. 학살 직후 작성된 미군의 조사보고서에는 희생자들의 처참한 주검 사진까지 첨부되어 있습니다. 퐁니 마을에서 작전을 수행한 한국 참전군인들의 증언도 이어졌습니다. 무엇보다 소송의 원고인 응우옌티탄은 학살 과정에서 심각한 총상을 입고 극적으로 살아난 생존자이자 유가족이었고 당시 사건을 생생히 기억하고 있습니다. 

원고 응우옌티탄의 용기와 진실된 호소에 대한민국 사법부는 기념비적인 승소 판결로 화답했습니다. 2023년 2월, 1심에서 응우옌티탄은 승소했고 한국과 베트남은 물론 일본, 미국, 프랑스 등 세계 주요 언론이 응우엔티탄의 법정 투쟁에 주목했습니다. 한국 정부가 항소하여 재판이 이어졌으나, 2025년 1월 재판부는 피고 대한민국의 항소를 기각하며 다시 한번 응우옌티탄의 진실과 정의에 손을 들어주었습니다. 소송은 현재 대법원에서 진행 중이며 선고까지는 수년의 시간이 더 소요될 것입니다. 이번 소송은 민사소송으로 진행되어 배상금을 청구하였는데, 원고가 요구한 금액은 3,000만 100원입니다. 이 금액은 민사소송에서 판결문을 받기 위한 최소 금액으로, 응우옌티탄의 청구금에는 소송을 통해 무엇보다도 진실규명을 이루고자 했던 그의 간절한 염원이 담겨 있습니다. 

이번 판결은 한국의 공적 기관이 베트남전 민간인학살의 진실과 책임을 인정한 최초의 사례라는 점에서 매우 중요한 의미를 갖습니다. 또한 베트남전쟁 시기에 벌어진 민간인학살 문제와 관련하여 가해국의 책임을 인정한 최초의 판결이라는 점에서도 큰 의미가 있습니다. 또한 이번 판결의 내용은 지금도 전 세계 곳곳에서 벌어지고 있는 식민지배, 국가폭력, 전쟁범죄에 대한 과거사에 대한 문제제기를 하는데 있어서 매우 긍정적인 의미가 있습니다. 전쟁이라는 극한의 상황에서도 민간인을 보호해야하는 국제인도법의 원칙이 중시된 것이고, 국가에 종속되지 않은 한 개인으로서 전쟁 피해자가 갖는 피해회복의 정당한 권리가 인정된 것이며, 전쟁범죄 문제에 있어 그 어떤 국가도 결코 면책될 수 없다는 점이 이번 소송에서 확인되었습니다.

이번 1심, 2심 판결의 승소에는 베트남의 피해자·유가족들과 연대하며 26년간 베트남전 진실규명 투쟁을 이어온 한국 시민사회의 기여 또한 매우 컸습니다. 2015년에 결성된 ‘민주사회를 위한 변호사모임의 베트남전쟁 민간인학살 진실규명 TF’의 변호사들이 원고 응우옌티탄의 대리인단이 되어 이번 국가배상소송을 수행했습니다. 한국 시민사회는 소송에 앞서 2018년에 ‘베트남전쟁 시기 한국군에 의한 민간인 학살 진상규명을 위한 시민평화법정’을 서울에서 개최하여 퐁니·퐁녓학살과 하미학살 사건을 다뤘습니다. 2018년의 이 모의법정은 2000년 일본 도쿄에서 열린 ‘일본군 성노예 전범 여성국제법정’과 베트남전쟁 시기 스웨덴과 덴마크에서 열린 ‘러셀법정’과 그 역사적 고리를 함께 합니다. 피해자와 가해국의 시민들이 함께하는 초국적 연대의 장이었던 시민평화법정은 베트남전 민간인학살 문제 관련 20년간 한국 사회에 축적된 수많은 증거들과 기억, 법적 근거들을 집대성한 자리였고, 그 누구보다 진실규명을 염원하는 베트남 피해자의 목소리를 확인할 수 있었습니다. 또한 베트남전쟁 문제에 있어 ‘가해자의 자리’를 성찰해야하는 대한민국의 과제를 확인한 시간이기도 했습니다. 2018년 시민평화법정은 국가배상소송으로 가는 예비적 과정이자 베트남전 과거사 문제에 대한 한국 시민사회의 공론장을 새롭게 구축했고, 앞으로의 진상규명운동을 위한 새로운 동력을 만들어냈습니다. 이러한 연장선에서 2020년부터 시작된 베트남전 민간인학살 소송은 피해자 응우옌티탄의 법정 투쟁이자 한국 사회가 가해자의 자리를 직시하고 그 책임을 다하기 위해 한걸음 더 나아간, 진실과 정의를 위한 평화운동이기도 했습니다.

이번 판결문의 번역과 배포를 추진한 ‘베트남전쟁 문제의 정의로운 해결을 위한 시민사회 네트워크’(이하 네트워크)는 2020년에 결성되어 베트남전 진실규명 문제와 관련된 다양한 활동을 현재에도 이어가고 있습니다. 네트워크는 2023년 2월 1심 승소 판결 이후 판결문을 베트남어, 일본어, 영어로 번역해 배포했고 2025년 1월 항소심 판결문도 번역해 세계인들에게 공유하고자 합니다. 한베평화재단이 수집한 자료에 따르면 베트남전쟁 시기 한국군 민간인학살 피해로 130여 건의 학살 사건과 1만 명 이상의 희생자가 발생한 것으로 파악됩니다. 이번 판결문 번역을 통해 한국 시민사회가 전하는 사죄와 연대, 평화의 마음이 베트남의 수많은 피해자와 유가족들에게 전해지길 바라며 이번 응우옌티탄의 승소가 갖는 역사적 의미가 베트남 사회에서도 기억되고 성찰되기를 희망합니다.

일본은 일제 식민지배 역사로 한국과 해결되지 않은 과거사 문제를 안고 있는 이웃 나라입니다. 베트남전쟁 시기 일본이 파병은 하지 않았지만 전쟁 특수를 누렸고 시민사회에서는 반전운동이 활발했던 역사가 있었던 만큼 베트남전쟁 문제에 관심 있는 연구자와 시민들이 많을 것이라 기대됩니다. 이번 판결문을 통해 국가폭력과 전쟁범죄 책임의 문제를 한국과 일본 시민사회가 함께 성찰하는 계기를 마련할 수 있기를 바랍니다. 또한 우리는 판결문의 영문 번역본을 통해 베트남전쟁을 주도했던 미국을 비롯한 전 세계인들에게 이번 베트남전 민간인학살 판결의 의미를 공유하고자 합니다. 1975년 베트남전 종전 이후에도 지구에서는 제2, 제3의 베트남전쟁이 되풀이되었고 지금도 세계 곳곳에서는 또 다른 응우옌티탄, 퐁니·퐁녓의 비극이 반복되고 있습니다. 20세기와 21세기를 아울러 이 세상의 모든 전쟁범죄가 그 어떤 이유로도 정당화될 수 없다는 진리의 한 조각을 이번 판결문에 담아 세계인들과 나누고자 합니다. 

이 판결문은 법률 문서인 동시에 하나의 역사적 증언이자 인권과 평화의 기록입니다. 판결문을 만날 전 세계 시민 여러분께 요청합니다. 이 기록을 단지 한국과 베트남의 일이 아닌, 우리 모두의 역사이자 과제로 읽어주시길 바랍니다. 침묵과 망각 속에서 어렵게 꺼낸 목소리, 전쟁범죄를 은폐하려는 국가에 맞서 진실과 정의가 승리한 법정 투쟁의 기록을 여러분의 평화로 읽어주십시오. 정의가 너무 늦게 오지 않도록, 다시는 같은 일이 반복되지 않도록, 진실과 마주하며 과거의 죄에서 미래의 평화를 발견하는 인류 공동체가 될 수 있도록, 우리가 함께 기억하고, 함께 나아가기를 바랍니다.

2025년 6월

베트남전쟁 문제의 정의로운 해결을 위한 시민사회 네트워크

독립연구활동가 심아정, 민변 베트남전 진상규명 TF, 베트남평화의료연대,
열린군대를위한시민연대, 아카이브평화기억, 참여연대, 한베평화재단, 향린교회

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A letter to the world: Sharing the Seoul High Court judgment 
for Nguyen Thi Thanh from Phong Nhi Village – victim-survivor 
of a civilian massacre during the Vietnam War 

On February 12, 1968, during the Vietnam War, 74 residents were indiscriminately killed by the Republic of Korea (ROK) forces in Phong Nhi Village and Phong Nhut Village, located in the central region of Vietnam. Among the survivors was a seven-year-old girl, Nguyễn Thị Thanh, who sustained a severe gunshot wound to her abdomen. She lost her mother, sister, and younger brother in the massacre and was left an orphan of war. About 50 years later, in 2020, Nguyễn Thị Thanh brought her case before a South Korean court. She filed a state compensation lawsuit, demanding that the South Korean government acknowledge the truth and take responsibility for the war crimes committed by ROK forces against her and her family.

Since 1999, the voices of victim-survivors and bereaved families of civilian massacres committed by ROK forces during the Vietnam War have begun tㅋo gain public attention within South Korea. In solidarity with Vietnamese victim-survivors, South Korean civil society launched the “Sorry, Vietnam” campaign, calling on the South Korean government to investigate the truth about the Vietnam War and issue an official apology. However, for over 20 years, the South Korean government remained silent and unresponsive. The lawsuit filed by Nguyễn Thị Thanh brought the irresponsible South Korean government to court and compelled South Korean society to once again confront the unresolved legacy of the Vietnam War.

The Phong Nhi-Phong Nhut massacre is one of the civilian massacres by ROK forces during the Vietnam War for which the most extensive evidence and witness testimony exist. A U.S. military investigation report written shortly after the massacre includes even graphic photographs of the victims’ mutilated bodies. Testimonies from South Korean veterans who participated in the operation in Phong Nhi Village have also been recorded. Most notably, the plaintiff in the lawsuit, Nguyễn Thị Thanh, is both a survivor—having sustained severe gunshot wounds during the massacre—and a bereaved family member. She vividly remembers the what happened during the massacre.

The courage and sincere appeal of the plaintiff, Nguyễn Thị Thanh, were met with a landmark ruling by the South Korean judiciary. In February 2023, the Seoul Central District Court ruled in her favor, and her legal battle garnered attention from major media outlets not only in Korea and Vietnam but also in Japan, the United States, France, and beyond. Although the South Korean government appealed the ruling, in January 2025, the appellate court dismissed the appeal, once again affirming the truth and justice sought by Nguyễn Thị Thanh. The case is now pending before the Supreme Court, and it may take several more years before a final verdict is issued. Filed as a civil lawsuit, the case included a damages claim of 30,000,100 KRW — a symbolic amount, representing the minimum required to obtain a written judgment in a civil case. More than monetary compensation, Nguyễn Thị Thanh’s claim reflects her earnest desire for truth-finding through the legal process.

This ruling holds great significance as it marks the first time a South Korean public institution has officially acknowledged the truth and responsibility for a civilian massacre committed during the Vietnam War. It is also the first legal decision in the world to recognize the liability of a perpetrator state for civilian massacres carried out during the Vietnam War. Moreover, the implications of this ruling extend to historical injustices related to colonialism, state violence, and war crimes still occurring in many parts of the world today. The court emphasized the principles of international humanitarian law, which mandate the protection of civilians even in the extreme context of war. It also affirmed the rightful claim of an individual war victim to reparations, independent of states. Most importantly, this case reaffirmed that no state can ever be exempt from accountability when it comes to war crimes.

The victories in both the first and second trials were made possible in large part thanks to the tireless efforts and solidarity of South Korean civil society, which has spent the past 26 years advocating for truth and accountability regarding the civilian massacres committed during the Vietnam War. In particular, lawyers from the Task Force Team for Truth-finding on Civilian Massacres during the Vietnam War of MINBYUN – Lawyers for a Democratic Society, launched in 2015, served as legal counsel for the plaintiff, Nguyen Thi Thanh, in this landmark lawsuit against the South Korean government. Even before the lawsuit, Korean civil society organized the People’s Tribunal on the Massacres Committed by the ROK Forces during the Vietnam War in Seoul in 2018. This People’s Tribunal addressed the massacres in Phong Nhi-Phong Nhut Village and Ha My Village, and carried historical significance by building on the legacy of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (Tokyo, 2000), as well as the Russell Tribunals held in Sweden and Denmark during the Vietnam War. The People’s Tribunal served as a unique site of transnational solidarity between victims and citizens of the perpetrating country. It brought together over two decades of accumulated evidence, testimonies, and legal arguments in Korean society, and provided a powerful platform for Vietnamese survivors to share their truth. More than anything, it was a moment for South Korean society to confront its responsibilities as a perpetrator state in the Vietnam War. The 2018 People’s Tribunal laid the groundwork for the eventual lawsuit, creating a new space for public discourse and propelling the truth-seeking movement forward. Within this continuum, the legal case initiated in 2020 over the civilian massacres was not only a courtroom struggle led by Nguyen Thi Thanh but also a broader peace movement marking a crucial step in South Korean society’s efforts to confront its own past, acknowledge its role as a perpetrator, and pursue truth and justice.

The Civil Society Network for a Just Resolution of the Vietnam War Issues (hereinafter “the Network”), which led the translation and dissemination of this court ruling, was established in 2020 and continues to carry out various activities related to truth-finding of the Vietnam War. Following the Seoul district court’s landmark ruling in February 2023, the Network translated the judgment into Vietnamese, Japanese, and English. Now, the Network has translated the appellate ruling of January 2025 to share with everyone around the globe. According to data collected by the Korea-Vietnam Peace Foundation, over 130 massacre cases and more than 10,000 civilian victims are believed to have resulted from massacres committed by the ROK forces during the Vietnam War. Through the translation of this ruling, we hope to convey to the countless Vietnamese victims and their families a message of apology, solidarity, and peace from Korean civil society. We also hope that the historic significance of Nguyen Thi Thanh’s legal victory will be remembered and reflected upon in Vietnamese society.

Japan is a neighboring country with which Korea still faces unresolved historical issues stemming from its colonial rule during the early 20th century. Although Japan did not send its forces to the Vietnam War, it benefited economically from the war and had a vibrant antiwar movement within its civil society. For this reason, we expect that many researchers and citizens in Japan will take interest in the issues related to the Vietnam War. We hope this court ruling will serve as an opportunity for Korean and Japanese civil societies to reflect together on the issues of state violence and accountability for war crimes. Furthermore, by sharing the English translation of the judgment, we aim to convey the significance of this case to the global public, including the United States, which played a leading role in the Vietnam War. Even after the war officially ended in 1975, the world has witnessed the repetition of similar tragedies—what could be called second and third Vietnam Wars. To this day, countless people across the world continue to endure individual sufferings like Nguyen Thi Thanh and the victims of the Phong Nhi–Phong Nhut massacres. With this ruling, we hope to share with the world a piece of the truth: that war crimes—whether in the 20th or 21st century—can never be justified under any circumstance.

This court ruling is not only a legal document—it is a historical testimony and a record of human rights and peace. To people around the world who will encounter this judgment, we ask: Please do not read it as a matter confined to Korea and Vietnam, but as part of our shared history and collective responsibility. This is a voice brought forth from silence and oblivion—a record of a legal struggle in which truth and justice prevailed against a state’s attempts to conceal war crimes. We urge you to read it as a message of peace. Let us remember together so that justice does not come too late. Let us walk forward together so that such tragedies are never repeated. By confronting the truth, may we become a global community that discovers future peace in the sins of the past.

June 2025

Civil Society Network for a Just Resolution of the Vietnam War Issues

Independent researcher SIM AJUNG, MINBYUN-Lawyers for a Democratic Society Task Force Team for Truth-finding on Civilian Massacres during the Vietnam War, Medics for Vietnam Peace, Civilian Military Watch, Memory and Peacebuilding Archive, People’s Solidarity for Participatory Democracy(PSPD), Korea-Vietnam Peace Foundation, Hyangrin Church

* * * * *

Seoul Central District Court

The 3-1 Civil Chamber

Judgment

Orders

1. The Defendant’s appeal is dismissed.

2. The costs of the appeal shall be borne by the Defendant.

Relief and Appeal

Prayer for Relief 

The Defendant shall pay to the Plaintiff 30,000,100 KRW, along with interest calculated at a rate of 12% per annum, from the day following the delivery of the copy of the complaint in this case until the date payment is complete.

Defendant Petitioner’s Request 

To revoke the portion of the lower court judgment against the Defendant, and to dismiss the Plaintiff's corresponding claim for damages.

Opinion 

1. Background 

  A. The Plaintiff (Nguyễn Thị Thanh) is a national of the Socialist Republic of Vietnam (hereinafter “Vietnam”).

  B. The Plaintiff was born on July 12, 1960 (hereinafter, for actions or circumstances related to Vietnam, all dates referred to are in local time) in Phong Nhị Village in Điện An District, Quảng Nam Province, present-day Vietnam (hereinafter “Phong Nhị Village”). On February 12, 1968, the Plaintiff – then seven years of age – was residing in Phong Nhị Village with her mother Phan Thị Trí (born 1934), older brother Nguyễn Đức Sang (born 1953), older sister Nguyễn Thị Trọng (born 1957), and younger brother Nguyễn Đức Trường (born 1962).

  C. On April 21, 2020, the Plaintiff filed suit at the Seoul Central District Court, claiming that, “On February 12, 1968, during an operation in Phong Nhị Village, soldiers belonging to the 1st Company, 1st Battalion, Second Brigade of the Republic of Korea Marine Corps (hereinafter “1st Company at Issue”) intentionally shot unarmed civilians, the Plaintiff and Nguyễn Đức Sang, causing injury, and shot Phan Thị Trí, Nguyễn Thị Trọng, and Nguyễn Đức Trường, killing them.” The Plaintiff sought compensation for a portion of the damages related to the mental distress and shock suffered by the Plaintiff herself, holding the Defendant accountable for the actions of the soldiers, who were the Defendant’s public officials, in committing the aforementioned murder of and infliction of serious bodily harm on the Plaintiff and her family members.

  D. At the time of the tort on February 12, 1968, Vietnam had been divided along the 17th parallel north into the Democratic Republic of Vietnam in the north (hereinafter “North Vietnam”) and the Republic of Vietnam in the south (hereinafter “South Vietnam”) in accordance with the ceasefire agreement of the First Indochina War; the country was also undergoing the Second Indochina War (hereinafter simply “Vietnam War”), a civil war between North Vietnam and the National Liberation Front for South Vietnam supported by North Vietnam (hereinafter “Viet Cong”; the Court shall use the term “Viet Cong” in this opinion to refer to the organization itself, its combatants, or units composed of its members; the Court shall use the term “North Vietnamese forces” to collectively refer to the North Vietnamese military and Viet Cong combatants) on the one hand, and South Vietnam on the other, with the United States (hereinafter “U.S.”) and other countries supporting the latter with combat troops at the latter’s request.

  E. The government of the Republic of Korea (hereinafter “ROK”), in response to a request from the U.S. government and others, established the Field Command HQ of the ROK Forces in Vietnam around October 1965 and sent troops, including those under the aforementioned Field Command and its subordinate Capital Division (also known as the “Maengho (Fierce Tiger) Unit”) and the 2nd Marine Brigade (also known as the “Cheongryong (Blue Dragon) Unit”) to areas such as Quy Nhơn and Cam Ranh in South Vietnam. These combat units of the ROK military fought in battles against North Vietnamese forces and the Viet Cong until their withdrawal.

  F. The Second Brigade of the ROK Marine Corps under the Field Command (hereinafter the “Second Marine Brigade”), immediately after completing “Operation Biryong,” which involved relocating the unit’s forces from the Chu Lai area in South Vietnam to the Hội An area in the northern part of Quảng Nam Province, and starting from January 30, 1968, the Vietnamese Lunar New Year, anticipated a large-scale offensive by North Vietnamese forces in the Quảng Nam Province area, including Hội An and the northern regions such as Điện Bàn and Đà Nẵng (in fact, starting from the early morning of January 30, 1968, North Vietnamese forces, among others, launched a large-scale offensive operation in the Quảng Nam Province area, including Hội An and Đà Nẵng, as well as throughout various other parts of South Vietnam, hereinafter referred to as the “Tet Offensive”). From that time until February 29 of the same year, the 2nd Marine Brigade fought against the North Vietnamese Forces and others launching the Tet Offensive across the entire Hiếu Nhơn district [Note: The term “district” following names of Vietnamese places refers to the administrative division of South Vietnam at the time], Duy Xuyên District, and most of the Điện Bàn District under the unit’s tactical area of responsibility in Quảng Nam Province, then repelled the North Vietnamese forces while conducting “Operation Goeryong No. 1” to search for and eliminate the remaining North Vietnamese forces who had fled or scattered. The 2nd Marine Brigade, to carry out or under “Operation Goeryong No. 1,” conducted a so-called Operation Vacuum by evacuating civilians from their homes within the operational area to relocation centers and searching for Viet Cong hiding in villages, while also coordinating with the 3rd U.S. Marine Landing Force[1] stationed in adjacent areas to carry out Operation Nutcracker, capturing and eliminating North Vietnamese forces and others that had infiltrated the area of their tactical responsibility.

  G. During the relevant time, Phong Nhị Village was a small village located in the Thành Phong Commune [Note: The term “Commune” seems to be an administrative unit roughly equivalent in size to a “myeon” in the ROK], Điện Bàn District, Quảng Nam Province, according to the administrative divisions of South Vietnam in 1968; to the east of the village, National Route 1 of Điện Bàn District (hereinafter “National Route 1”) ran in a north-south direction.

  H. On February 12, 1968, around Phong Nhị Village, the 3rd U.S. Marine Landing Force had several Combined Action Platoons (hereinafter “CAP”), which were small units comprising of Marines under its command and South Vietnamese militia from nearby villages, stationed at fixed outposts along National Route 1, with CAP D-1 stationed at the north of Phong Nhị Village, CAP D-2 just south of the village, and CAP D-3 and CAP D-4 stationed further south of the CAP D-2 outpost.

  I. On February 12, 1968, a joint attack using rifles and bayonets was launched against many residents of Phong Nhị Village, including the Plaintiff and her family. As a result, the Plaintiff sustained serious gunshot wounds to her abdomen and was hospitalized for about eight months, undergoing multiple surgeries and treatments. The Plaintiff’s older brother, Nguyễn Đức Sang, suffered serious gunshot wounds to his abdomen and buttocks; the Plaintiff’s mother, Phan Thị Trí, older sister, Nguyễn Thị Trọng, and younger brother, Nguyễn Đức Trường, all died on the same day from the attack.

[Evidentiary Grounds] Undisputed facts; documents or recordings at Exhibits Nos. Gab-10, 11, 16, 27, 30, 33, 42, 61, No. Eul-43 (exhibits with sub-exhibit numbers are indicated accordingly); and overall substance of the pleadings

2. Assessment of the defense pleadings on the merits

  A. Summary of Defendant’s pleadings

  In accordance with the accord in principle between the governments of the ROK, South Vietnam, and the U.S. – which stipulated that the ROK would not be responsible for damages caused to South Vietnamese civilians by the ROK Forces in Vietnam (hereinafter “ROKFV”) during the Vietnam War – Article 19 of the Korea-Vietnam Military Working-Level Agreement signed between the ROK and South Vietnam on September 5, 1965 states that the property and human losses caused to South Vietnamese citizens by the ROK Armed Forces should be addressed through separate negotiations between the governments of the ROK and South Vietnam. Furthermore, the Korea-U.S. Supplementary Working-Level Agreement, which builds upon Article 15 of the Korea-U.S. Military Working-Level Agreement, stipulates that claims for damages arising from non-combat actions against the ROKFV shall be resolved through the ROKFV Petitions Office in South Vietnam, with payment guarantees provided by the United States, and that petitions for damages caused to the government or individuals of South Vietnam during the combat readiness, combat operations, and post-combat return of the ROKFV shall be referred to the village chief, head, or mayor at the location where the case occurred, thereby establishing an understanding to resolve any claims for compensation by South Vietnamese civilians against the Defendant through such process until the conclusion of the Vietnam War. Accordingly, the Petitions Office was established, and compensation for South Vietnamese civilians was actually provided until around 1972, with the signing of the “Exchange of Notes between the Government of the Republic of Korea and the Government of the Republic of Vietnam relating to Claims against Each Other for Loss or Damage of any Government Property and for Death or Injury suffered by any Member of its Armed Forces in the Performance of his Official Duties” (hereinafter Korea-Vietnam Claims Exchange) between the governments of the ROK and South Vietnam on January 16, 1967, further agreeing to resolve the claims of South Vietnamese civilians against the Defendant through the aforementioned petition procedure. Thus, compensation for harm caused by the ROKFV’s combat or non-combat actions to South Vietnamese civilians was resolved, and therefore, claim for damages caused by the actions of the ROKFV during their operations by the Plaintiff, a South Vietnamese national at the time, is inadmissible.

  B. Assessment of the Defendant’s pleadings

  For the following reasons, the Court cannot accept the Defendant’s arguments described above; even when the circumstances revealed by the evidentiary record in this case are examined ex officio, the Court cannot conclude that the Plaintiff’s claims are inadmissible due to an accord or working-level agreement between the government or authorities of the ROK and the governments or authorities of South Vietnam or the United States:

    1) According to the general principle of legal interpretation that the rightsholder’s intent must be explicit to waive such right, a waiver cannot be recognized without clear and sufficient grounds; the same principle applies to the interpretation of agreements between states or multilateral agencies. Moreover, an even stricter and more cautious approach is required when deeming the state to have waived the rights of its citizens, who are separate legal entities from the state itself.

    2) The aforementioned accords and working-level agreements cited by the Defendant do not contain any language to the effect of waiving, prohibiting, or excluding the exercise of South Vietnamese civilians’ right to compensation from the Defendant.

      a) The aforementioned accords and working-level agreements merely stipulate that claims for damages suffered by South Vietnamese civilians shall be processed through the petitions procedure of the ROKFV Petitions Office in South Vietnam or by referral to local officials such as the village chief. However, they do not explicitly waive individual South Vietnamese citizens’ right to compensation or their right to sue the Defendant, nor is there any agreement that precludes legal claims against the Defendant by South Vietnamese civilians.

      b) By contrast, the Korea-Vietnam Claims Exchange, signed by the ROK government and the government of South Vietnam on January 16, 1967, contains a clear waiver provision regarding claims between the two governments, providing that “each government waives claims it may have against the other government or concerning personal injuries of its military personnel.”

      c) In particular, the Korea-Vietnam Military Working-Level Agreement, revised on October 20, 1969, includes a provision whereby the Republic of Vietnam Armed Forces (hereinafter “RVNAF”) and the ROKFV mutually waive claims related to property damage, personal injury, or death caused by agents of their respective forces within Vietnam. The agreement further stipulates that “[t]his waiver does not extend to the claims of individuals. RVNAF and ROKFV recognise that each is individually responsible for the adjudication and settlement of claims by third parties for damage, injury or death caused by personnel of their commands and arising out of their respective operations in the RVN.”[2] This language clearly establishes that the legal right of South Vietnamese civilians regarding damages caused by the actions of the ROKFV personnel between the ROK and South Vietnam has not been waived, and has never been waived.[3]

    3) Even if the Defendant had intended to provide compensation for the personal injury and property damage suffered by South Vietnamese citizens resulting from combat or non-combat actions of the ROKFV during the Vietnam War – with the burden of compensation falling on the U.S. – and to this end, to regulate the claims procedure through the ROKFV Petitions Office established in South Vietnam through a working-level agreement with U.S. military authorities, and even if there is an actual example of compensation for damages to South Vietnamese citizens in accordance with such procedure, these are hardly clear and sufficient grounds to recognize a waiver of claims for compensation against the Defendant by South Vietnamese citizens.

    4) Accordingly, it would be reasonable to conclude that the purpose of the accords or working-level agreements cited by the Defendant was merely to establish procedures or methods of compensation for the bodily harm and property damage of South Vietnamese civilians caused by combat or non-combat actions of the ROKFV, through referral to the village chief or claim procedures at the ROKFV Petitions Office, with the goal of ensuring prompt compensation for damages suffered by South Vietnamese citizens, facilitating U.S. financial expenditures that make such compensation possible, and reducing the Defendant’s risk of financial burden through such facilitation. In addition, in light of the general principle of legal interpretation outlined earlier, the Court cannot conclude that the Defendant and South Vietnam, through the aforementioned accords and others, have agreed to waive the right of South Vietnamese citizens to seek compensation or pursue legal action against the Defendant for such claims, or to exclude or suppress them from exercising their other legal rights; even when examined ex officio, the Court could not find a treaty or agreement between the Defendant and South Vietnam to that effect.

    5) Some may interpret the aforementioned accords to mean that if a South Vietnamese citizen wishes to file a lawsuit against the Defendant for compensation for damages caused by combat or non-combat actions of the ROKFV or its personnel, they must first go through procedures such as claims through the ROKFV Petitions Office and others as prescribed in the working-level agreement between the ROK and South Vietnam, and between the ROK and the U.S. military authorities – such that, if the Plaintiff filed this lawsuit without following such procedures, the lawsuit would be deemed inadmissible. However, even under that interpretation, for the reasons stated below, the agreement in question has already lost its effect; therefore, the Plaintiff’s claim cannot be inadmissible in court on the basis that she did not exhaust other remedies such as the Petitions Office. 

      a) As mentioned earlier, the Plaintiff claims that the Defendant’s military personnel intentionally killed her and her family, who were unarmed civilians, and seeks compensation for the resulting mental distress and shock. However, this case pertains to a “claim for compensation for damages against the ROKFV resulting from its non-combat actions” under the Korea-U.S. Supplementary Working-Level Military Agreement and thus falls under the category of matters to be handled through the procedure at the ROKFV Petitions Office, since Article 6 of Annex A to the Korea-U.S. Supplementary Working-Level Military Agreement stipulates that “non-combat petitions refer to claims for compensation for harm to property, body, and life caused in Vietnam by acts or omissions, whether intentional or negligent, by personnel and employees of the ROKFV, regardless of whether they were performing official duties, as well as claims for damages arising from wartime acts by local employees of the ROKFV during the course of their assigned duties.”

     b) The question of whether the above working-level agreement, which is merely an agreement between military authorities, can restrict the rights of South Vietnamese citizens such as the right to sue depends on the interpretation of the legal system in South Vietnam. However, assuming that this arrangement has an effect on the Plaintiff and restrict her rights, it is conceivable that, by stipulating that compensation for damages resulting from non-combat actions be resolved primarily or principally through the claims procedure at the ROKFV Petitions Office, that arrangement meant to require an exhaustion of administrative remedies. 

     c) However, as the Defendant acknowledges and the evidence demonstrates, the ROKFV Petitions Office provided compensation for damages to South Vietnamese citizens only until 1972 and, following the unification of North and South Vietnams, subsequently closed in 1973.

     d) The closure of the ROKFV Petitions Office thus eliminated the possibility of seeking an administrative remedy through a petition. Consequently, even if there was an agreement between the ROK and South Vietnam to require exhaustion of administrative remedies for compensation for damages caused to South Vietnamese citizens by the non-combat actions of the ROKFV, and even if such an agreement is deemed to have the effect of restricting the rights of the Plaintiff and other South Vietnamese citizens, that agreement has already been rendered ineffective.

3. Assessment of the merits

* The full translated version of the judgment can be download at the link below. *

https://readmore.do/vdQN