1) In this case, since there is no possibility of applying the principle of accessory connection (Article 32 Paragraph (3)) or of lex domicilii communis (Article 32 Paragraph (2)), the principle of lex loci delicti commissi (Article 32 Paragraph (1)), exception to designation of the applicable law (Article 8 Paragraph (1)) or ex post facto agreement on the applicable law (Article 33) shall be followed to determine the applicable law.
2) Taking into account of the following circumstances, the State Compensation Act can be considered to be the most relevant law to the legal relationship of this case. In accordance with the choice of the injured party as well as the ex post facto agreement between the parties on the applicable law, the State Compensation Act shall be the applicable law in the determination of whether the tort is established and whether to accept Defendant’s state liability for compensation in this case.
(1) All principles of lex loci enshrined in the Act on Private International Law seek to designate the law that is most relevant to the matter at hands. There is, however, a possibility where the result of applying the provisions of the Act on Private International Law is contrary to such principles. As a precaution to such cases and to ensure the correct application of the principle of lex loci under the Act on Private International Law, it has in place Article 8 Paragraph (1) as a general exception clause.
(2) The previous Act on Private International Law, while maintaining the principle of lex loci delicti commissi in regards to the applicable law of torts, applies the principle of lex domicilii communis based on the common habitual residence (Article 32 Paragraph (2)), of accessory connection (Article 32 Paragraph (3)) and ex post facto agreement on the applicable law (Article 33), etc. to relax the application of the principle of lex loci delicti commissi to a certain degree. However, the Act does not have in place special clauses regarding different types of torts. Thus, the exception clause shall be applied to reach the appropriate conclusion on the applicable law.
(3) The applicable law on torts governs the establishment and effects of torts. Thus, the capacity to commit torts, unlawfulness, causation, reasons for attribution, persons with the right to claim compensation for damage, the right to indemnity between joint tortfeasors, the means, types, range and amount of compensation for damage, as well as the statute of limitations of the right to claim compensation for damage caused by torts, etc., are governed by the applicable law.
(4) Plaintiff alleges that the service members of the First Company committed a tort during the Vietnam War while carrying out a military operation by shooting and injuring civilians of Vietnam such as Plaintiff and killing her family, and claims Defendant’s state liability for compensation. The service members of the First Company are nationals of the ROK who were deployed to Vietnam by the ROK government and were conducting a series of operations in Vietnam under orders.
If the service members of the First Company have caused harm to other persons in violation of laws while carrying out operations, it is considered that the State Compensation Act regulates the most valid and relevant legal relationship in order to seek state liability for damage against Defendant to which the service members belong to. The State Compensation Act purports to prescribe the liability to compensate for damage and the procedures for such compensation in case a public official of the State (the ROK) or local governments willfully or negligently caused damage to other persons in violation of laws in performing their official duties (Articles 1 and 2). The Act, however, does not distinguish whether the place in which such violation has occurred is within or outside of the ROK territory. Furthermore, in case the victim is an alien, the Act applies the same as it does to the ROK nationals if there is a mutual guarantee with the corresponding state (Article 7).
(5) The reason why the previous Act on Private International Law follows the principle of lex loci delicti commissi is because it is more reasonable and practical in the perspective of fairness to consider the societal conditions in which the tort is committed and to apply the legal consciousness of such society than to apply the domestic law of the ROK, and because it also meets the expectations of the parties (78Da1343, Supreme Court of Korea, Decision of 13 November 1979). In this case, the tort was committed in Vietnam, and thus applying the legal consciousness of where the tort occurred to this case can be considered as an option (this could be ‘the South Vietnamese law’ considering the government of the region at the time or, based on the current circumstances, it could be ‘the Vietnamese law’). This could be in Plaintiff’s interest, who is the injured party in this case. However, Plaintiff gives up such interest in applying the (South) Vietnamese law and argues that the ROK should be the applicable law in this case. Unless there exist exceptional circumstances not to do so, it is appropriate to respect the choice of the applicable law of the injured party.
(6) On the South Vietnamese law, which is likely to become the applicable law in this case, if the principle of lex loci delicti commissi is to be followed, neither Plaintiff nor Defendant submit any relevant information. When the foreign law is unclear even though the court has conducted an ex officio investigation, the court cannot refuse to continue the proceedings for the lack of information but is to follow the foreign customary law according to the fundamental principle of civil law on the source of law. In case the court cannot verify the foreign customary law as well, sound reasoning is to be followed (98Da25037, Supreme Court of Korea, Decision of 9 June 2000). In this case, it does not appear that such sound reasoning would be significantly different from the provisions of the current Vietnam Law on State Compensation Liability or the State Compensation Act.
(7) The Act on Private International Law on statutory claims in general, including the right to claim compensation for damage, allows the parties to ex post facto agree upon the ROK law (lex fori) as the applicable law (Article 33). If such agreement exists, it takes precedence over the other provisions. Such ex post facto agreement needs not to be explicit but can be made implicitly.
Plaintiff and Defendant are in dispute over the establishment of the tort and state liability for compensation, as well as the statute of limitations of the right to claim compensation for damage caused by the tort. Both of their arguments are premised on the application of the ROK law (Defendant argues that, under the premise of the State Compensation Act being applied, the statute of limitations of Plaintiff’s right to claim compensation for damage is 5 years at the longest, or 3 years if shorter). Such attitudes and stances of Plaintiff and Defendant can be interpreted as them ex post facto agreeing to choose the ROK law as the applicable law.
4. Finding on the merits
A. Summary of the arguments made by the parties
1) Plaintiff
A) The unknown service members of the First Company on 12 February 1968 in Phong Nhị Village, Thành Phong, Điện Bàn, Quảng Nam, Vietnam, willfully shot Plaintiff, who was a civilian, and caused a serious injury in her abdomen, and killed or injured Plaintiff’s family.
B) Because the service members belonging to Defendant willfully shot Plaintiff and her family, killing and injuring them, which are acts that violate human dignity, deprive life and cause bodily injuries, Defendant is liable to compensate for emotional damage Plaintiff sustained from such acts.
2) Defendant
A) Although Plaintiff argues that the perpetrator of this case is the service members of the ROK Armed Forces, this is mostly based on the statements from the side of the victim, and these statements alone cannot prove that the perpetrator in fact belonged to the ROK Armed Forces. During the Vietnam War, the psychological warfare agents of the North Korean armed forces at the time carried out various psychological operations against the ROK Armed Forces, including the 2nd Marine Corps Brigade, and cooperated with the Viet Cong as well. The possibilities of the involvement of the North Vietnamese armed forces, Viet Cong and North Korean armed forces in this case cannot be ruled out. Even the residents of the village knew the perpetrator as members of the North Vietnamese armed forces. Thus, it cannot be considered that the service members of the ROK Armed Forces are specified as the perpetrator.
B) Even if the acts in question were caused by the ROK Armed Forces, there was a justifiable context to mistake the residents of Phong Nhị Village, including Plaintiff and her family, as the Viet Cong or those who cooperate with the Viet Cong. Thus, these acts were either combat actions during hostilities or in accidents, therefore acts of self-defense.
C) Even if Plaintiff’s right to claim compensation for damage is accepted, the statute of limitations has expired as considerable time has passed, and thus, Plaintiff has lost that right.
B. Finding on whether the state liability for compensation is established
1) Admitted facts
According to Plaintiff’s Evidence No. 10, 11, 13, 14, 16, 18, 21, 22, 23, 25 through 30, 44, 45 (including branch numbers if they exist), respective testimonies of Witnesses J and K, the result of the examination of parties on Plaintiff, the following facts can be admitted.
A) On 12 February 1968, between 08:00 to 10:30, the service members of the First Company (of 1st Battalion of the 2nd Marine Corps Brigade) left the base and headed north via National Route 1 and arrived near where the CAP D-2 was. They then reached a point between the locations of the CAP D-2 and D-1 via National Route 1 (east of Phong Nhị Village). From there, they got out of National Route 1 and headed west.
B) While the First Company was heading west as above, between 10:30 to 11:30 as they were passing through Phong Nhị Village, dozens of shots coming from the northwest were fired at them. One member was injured. Meanwhile, on National Route 1, a LVT of the U.S. Armed Forces carrying out the joint operation was damaged by a landmine.
C) After being shot at, the First Company carried out a search operation in Phong Nhị and Phong Nhất Villages between 10:30 to 15:00. Parts of the First Company (presumably the 1st and 2nd Platoons in the front) searched the villages and dragged out the residents hiding in their houses (mostly women, the elderly and children). These service members gathered the residents in several empty lots and handed them over to the rear before advancing to Suoi Co Ca (River) to establish a line of defense. At the same time, some service members (presumably the 3rd Platoon) in the rear with the Company headquarters shot the gathered residents. They opened fire at the other residents and burned down houses while searching Phong Nhị and Phong Nhất Villages.
D) At the time, Plaintiff’s aunt L (born 1936, 32 years old), aunt L’s son M (born 1967, 9 to 10 months old at the time of the shooting), older brother C (born 1953, 15 years old) older sister D (born 1957, 11 years old), Plaintiff (8 years old at the time), younger brother E (born 1963, 6 years old), and a neighbor child from who came over (12 years old), a total of seven people, were at Plaintiff’s house. None of them were armed. They heard the gunshots in the area and hid in the bomb shelter at the house. Plaintiff’s mother B (born 1934, 34 years old) was outside at the time and not with them.
E) The service members of the First Company came into Plaintiff’s house and ordered Plaintiff’s family, etc., to exit the shelter threatening them with grenades and guns. When Plaintiff’s family, etc., one by one exited the shelter, the service members opened fire, and burned down Plaintiff’s house (when Plaintiff’s aunt holding Plaintiff’s cousin, tried to stop them, they stabbed her with bayonets). Afterward, they moved on to another place.
Due to this, Plaintiff’s aunt, cousin (the aunt’s son), older sister, younger brother, and the neighbor's child died on the spot. Plaintiff sustained a severe injury in her abdomen and Plaintiff’s older brother (C) in his abdomen and rear but did not die.
F) Plaintiff’s mother B was outside at the time. The service members of the First Company forcefully gathered Plaintiff’s mother and ten or so other residents (mostly women and children) in one place and killed them with guns.
G) Plaintiff and her older brother (C) sought shelter at a neighbor’s house. When Plaintiff went out to look for her mother, she fainted and passed out. On the same day, after around 15:00, the CAP D-2, a platoon of the Combined Action Platoons, formed a patrolling party with the militia and entered Phong Nhị Village. They rescued the survivors and recovered the bodies. A member of the Combined Action Platoons (Corporal N) took photographs of the scene. Plaintiff and her older brother were rescued and evacuated to the hospital via helicopter, where they underwent multiple surgeries and received medical treatments.
2) Establishment of state liability for compensation
According to the admitted facts, the unknown service members of the First Company who are the nationals of the ROK, forced Plaintiff’s aunt, young Plaintiff and her older sister, older brother, younger brother, etc. to come out of the shelter and immediately shot and stabbed them, killing Plaintiff’s family (aunt, older sister, younger brother and cousin) except for Plaintiff and Plaintiff’s older brother (C), and injuring Plaintiff and Plaintiff’s older brother. They also gathered the residents of the village including Plaintiff’s mother in one place and killed them on the spot. These acts are clearly tortious acts that violate human dignity, deprive life and cause bodily injuries. Therefore, Defendant is liable to compensate for emotional damage Plaintiff sustained from such acts.
C. Decisions on Defendant’s arguments
1) Decisions on the argument that the acts were committed by the Viet Cong or North Korean armed forces disguised as the ROK service members
A) Defendant argues that there exist cases where the Viet Cong disguised as the ROK Armed Forces and massacred civilians such as the ‘Linh Sơn Pagoda Incident’, and that the acts in this case could have been committed by the Viet Cong or North Korean armed forces disguising as the ROK Armed Forces.
B) According to Defendant’s Evidence No. 3 through 8, the following facts and circumstances are admitted.
(1) The so-called ‘Linh Sơn Pagoda Incident’ of October 1969 used to be known as a case where the service members of the ROK Armed Forces killed Buddhist monks in the Linh Sơn Pagoda. Later, the ROK-Vietnam joint investigation discovered that it was committed by the Viet Cong, who covered it up as the acts of the ROK Armed Forces. This was reported in the ROK media from 1969 to 1971.
(2) In <Korean Soldiers Deployed to Vietnam>[6] (Plaintiff’s Evidence No.10-2, Vol.4, p.75[7]), an incident was recorded where the 25th Company of the 2nd Marine Corps Brigade searched the Villages of Quang Loc Dong (1) – Phong Ho (2) (approximately 3 km away from Phong Nhị Village), found six enemies, (Viet Cong) disguised as the ROK service members, engaged in combat and killed them.
(3) The ROK Armed Forces intelligence report dated 1 February 1968 refers to an incident ‘in Điện Bàn, Quảng Nam, when a North Korean platoon working with the V-25th Battalion attempted infiltration, ambush and assassination in the ROK Armed Forces Command Post (CP) and Units’. Based on these materials, etc., we could assume that the North Korean armed forces participated in the Vietnam War by deploying psychological warfare agents, etc.
C) However, from the admitted facts and circumstances based on the evidence mentioned above, we acknowledge that the acts of killing and injuring Plaintiff and her family, in this case, were committed by the service members of the First Company.
(1) There are those who directly experienced and survived this incident and stated that the First Company was the perpetrator. These individuals include Plaintiff and Plaintiff’s older brother C who were in the shelter at the house with their family, later found by the First Company and sustained serious injuries from gunshot, and were rescued later, as well as O, P (Plaintiff’s Evidence No. 16-1 and 16-2) and Q (Plaintiff’s Evidence No. 28-1 and 28-2) who were rescued by the Combined Action Platoons from the scene. They all stated that the ROK Armed Forces service members attacked them. These individuals in person, saw the perpetrator at close range. All except for Plaintiff (who was eight years old at the time) were over 15 and capable of sufficiently recognizing the perpetrator they saw as ROK Armed Forces. Especially, C saw the service members of the ROK Armed Forces on multiple occasions before the incident, and on the day of the incident, C saw the service members of the ROK Armed Forces passing by the house. Considering all these factors, the statements made by the survivors are credible.
(2) Eyewitnesses also stated that the First Company was the perpetrator. Such eyewitnesses include the members of the Combined Action Platoons, First Lieutenant R, Staff Sergeant S, Corporal N, T, and U (Plaintiff’s Evidence No. 16) who watched the First Company attacking Phong Nhị Village from National Route 1. Witness K, who was a part of the South Vietnam Rural Development Cadre Group, received a message by radio that the ROK Armed Forces was attacking Phong Nhất and Phong Nhị Villages, and came to National Route 1 to watch the First Company attacking Phong Nhị Village (Witness K testimony). In their statements, these eyewitnesses also identified the service members attacking Phong Nhị Village as the ROK Armed Forces.
First Lieutenant R of the Combined Action Platoons, in particular, contacted the fire support coordination center of the ROK Armed Forces. He requested the center to confirm the coordinates of the 81 mm mortar-related mission on a location near a paddy field located south of the village. Yet, his request was denied because the ROK Armed Forces were carrying out an operation in the area. His request for permission to enter Phong Nhị Village was also denied for the same reason (Plaintiff’s Evidence No. 16-1 and 16-2, First Lieutenant R written statements). This clearly indicates that some units of the First Company were in Phong Nhị Village when the village was under attack.
(3) Some members of the First Company also stated that the First Company was the perpetrator. These include 1st Platoon Leader V (Plaintiff’s Evidence No. 13, 21-1 through 21-4), 2nd Platoon Leader W (Plaintiff’s Evidence No. 13), 3rd Platoon Leader X (Plaintiff’s Evidence No. 13), 2nd Platoon Member J (Plaintiff’s Evidence No. 22, Witness J testimony) and 2nd Platoon Member Y (Plaintiff’s Evidence No. 23), etc. They all stated that some of the First Company service members killed the village residents during the operation on 12 February 1968.
In particular, 1st Platoon Leader V and 2nd Platoon Leader W entered the village after being shot. They searched the village, found the residents, and handed them over to the platoons in the back. As they continued advancing, they heard gunshots from the back and learned that they were from the platoons in the back opening fire at the residents. Moreover, the next day, 2nd Platoon Leader W saw the residents laying down the bodies of those killed the day before and staring at the ROK service members with resentment in their eyes. From this, he was able to confirm that the gunshots he heard the night before came from the platoons in the back, opening fire at the residents handed over to the back. 2nd Platoon Member J, while patrolling National Route 1 on 13 February 1968, the day after the incident of Phong Nhị Village, saw the residents laying down the bodies of those killed the day before. According to his statement, when he returned to the Company base, he heard that the members of the other platoons attacked the village's residents at the order of the Company commander.
These statements from the members of the First Company, considering it is difficult to think of a reason that they would lie about their own experiences as those who were the closest to the incident, are highly credible.
(4) When the First Company was mounting the operation in the areas of Phong Nhị and Phong Nhất Villages on 12 February 1968, liaison officers of the U.S. Marine Corps ‘Private First Class Z’ and ‘Private First Class aa’ accompanied them. Private First Class aa stated that on 12 February 1968, the First Company attacked villages following the orders from the Company commander, and it was one of the platoons, not the entire Company, that attacked the villages (Plaintiff’s Evidence No. 16-1 and 16-2). Privates First Class Z and aa did not specifically mention the name of the village attacked by the First Company. However, their description of the village attacked by the First Company is similar to the photographs and descriptions, provided by Corporal N of the Combined Action Platoons of Phong Nhị Village attacked by the ROK Armed Forces. From this, we acknowledge that the village described by Privates First Class Z and aa, attacked by the First Company, was Phong Nhị Village.
(5) After the incident, the chief of the military police investigative section investigated the incident and, in a media interview, said ‘the ROK Armed Forces were shot at and one of their own collapsed when they were passing by the village. Subsequently, they surrounded the village and massacred the residents. Yet, due to the orders of the high rank, it was covered up as the work of the Viet Cong disguised as the ROK Armed Forces’ (Plaintiff’s Evidence No. 18). This statement also strongly supports the claim that the perpetrator of this case was the First Company.
(6) Defendant claims that the operational records of 12 February 1968 in <Korean Soldiers Deployed to Vietnam>, which is highly credible as the official document according to Defendant, does not state that the First Company attacked Phong Nhị Village, and it proves that the First Company was not involved with the incident occurred in Phong Nhị Village.
<Korean Soldiers Deployed to Vietnam> Vol.4, p.349 describes the activities of the First Company on 12 February 1968 as follows.
The 1st Company (Commander, Captain bb) advanced north, patrolling National Route 1, entered Phong Nhut Village, and turned the direction of attack westward. At 11:05, the front unit attacked Objective (11) when the enemies shot approximately 30 rounds from the west. The Company subdued the enemies by firing a 4.2-inch mortar at the location where the shots originated. One service member was injured and was evacuated. Meanwhile, a U.S. LVT came into contact with a “booby trap” on National Route 1. One U.S. service member on the vehicle was injured, and the vehicle itself was heavily damaged. The rear unit of the Company ordered the 1st Platoon (Leader, First Lieutenant V) to defend it. Thus, the Company, only with the 2nd and 3rd Platoons, attacked and searched Objectives (12) and (13) without enemy contact. The Company then extended the troops toward the north and south following the advantageous terrains of Phong Nhut Village (2) west of Suoi Co Ca (River), and carried out an interdiction operation on the shared area with the 2nd and 7th Companies. Then the 1st Company was shot at by enemies from across the river, and one was additionally injured. At 13:10, they occupied Phong Nhut Village (2), assumed a hasty defense and spent the night. |
As Defendant argues, <Korean Soldiers Deployed to Vietnam> records that the First Company advanced north following National Route 1, turned west to reach the area of operation near Suoi Co Ca (River). According the record, the First Company entered ‘Phong Nhut Village’ (Phong Nhất Village) instead of ‘Phong Nhi Village’ (Phong Nhị Village)[8] before turning the direction of attack westward, and the front unit of the Company attacked ‘Objective (11)’ at 11:05.
However, the fact that the First Company turned west from National Route 1 and entered ‘Phong Nhi Village’ to reach the area of operation near Suoi Co Ca (River) can be confirmed by Annex 2 ‘<Korean Soldiers Deployed to Vietnam> Attached Map: a sketch map of Operation Goeryong No.1 progress’ (Plaintiff’s Evidence No. 11). The map of Annex 2 indicates the locations of National Route 1, Phong Nhi Village, Phong Nhut Village (1), Phong Nhut Village (2) and Suoi Co Ca (River) as well as the movement of the First Company. It indicates that the First Company passed through Objective (11), i.e., Phong Nhi Village (Phong Nhị Village) first, and then passed through Objectives (12) and (13), i.e., Phong Nhut Village (2) and advanced to Suoi Co Ca (River).
Specifically, the sketch map of Operation Goeryong No.1 progress does not include the name ‘Phong Nhut’; instead, it includes ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’. Since the military records require accuracy, if the same names of places are distinguished as (1) and (2), it clearly specifies the names such as ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’. Indeed, the operational records of the First Company on 12 February 1968 in <Korean Soldiers Deployed to Vietnam> state, ‘The Company then extended the troops toward the north and south following the advantageous terrains of Phong Nhut Village (2) west of Suoi Co Ca (River), and carried out an interdiction operation on the shared area with the 2nd and 7th Companies.’[9] The name ‘Phong Nhut Village (2)’ is specifically distinguished and recorded as such. In light of this, it appears highly unusual that <Korean Soldiers Deployed to Vietnam> did not specifically distinguish the name of the village the First Company entered after they got out of National Route 1 as Phong Nhut Village (1) or Phong Nhut Village (2), and instead used the name ‘Phong Nhut Village’ which does not exist in the aforementioned sketch map of the operation progress. Moreover, according to the said sketch map, ‘Objective (11)’ is located east of ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’, i.e., the village that is referred to as Phong Nhut Village. But then the records of <Korean Soldiers Deployed to Vietnam> which state that the Company ‘advanced north patrolling National Route 1, entered Phong Nhut Village, and turned the direction of attack westward. At 11:05, the front unit attacked Objective (11)’ is inconsistent. This raises suspicion that <Korean Soldiers Deployed to Vietnam> intentionally recorded the name of ‘Phong Nhi’ as ‘Phong Nhut’ to hide the fact that the First Company entered Phong Nhi (Phong Nhị Village) at the time of the incident of this case.
Furthermore, considering that <Korean Soldiers Deployed to Vietnam> is the official record compiled by the ROK Ministry of Defense, it seems unlikely that it would truthfully record war crimes such as civilian killings. Especially with regard to the incident that occurred in Phong Nhị Village, the commander of the ROKFV at the time (General Chae, Myung-shin) in June 1968 made a statement that ‘it was committed by the Viet Cong disguised as the ROK Armed Forces’ in an official letter. <Korean Soldiers Deployed to Vietnam>, which was compiled 4 years after the such statement, is likely to be written to reflect that official position. In fact, the operational records of the First Company on 12 February 1968 in <Korean Soldiers Deployed to Vietnam> omit or falsify some of the facts. (The detailed combat reports document that on 12 February 1968, the First Company withdrew to the Company base while conducting the interdiction operation. 2nd Platoon Member J, who participated in the operation in question, also stated that in the middle of the interdiction operation, suddenly an order to withdraw came, and they withdrew to the Company base. It is also noteworthy that these ‘detailed combat reports’ record that not only the First Company but also the 2nd and 7th Companies, who were in the 1st Battalion as well and conducting the interdiction operation with them, also withdrew following the orders. However, <Korean Soldiers Deployed to Vietnam> states to the effect that the First Company continued with the interdiction operation and was stationed all night, which raises suspicion of falsified records. These circumstances suggest that there was an attempt to cover up the incident in this case, and thus, it is difficult to accept Defendant’s argument that the First Company was clearly not the perpetrator since there is no reference to the First Company attacking Phong Nhị Village in <Korean Soldiers Deployed to Vietnam>.
(7) Defendant argues that the statement of cc, who ‘was told that it was the Vietnamese armed forces (Viet Cong) who attacked Phong Nhị Village’ (Plaintiff’s Evidence No. 29-1 and 29-2, 41) supports that the service members who attacked Phong Nhị Village belonged to the Viet Cong and were disguised as the ROK Armed Forces.
However, when the incident occurred, as cc indicated in the statement, cc was ‘hiding in the shelter at the house after hearing gunshots, and came out only after everything was over’ (Plaintiff’s Evidence No. 41). cc did not see the incident in this case. Moreover, cc has given a vague statement that cc heard from another person that ‘it was the Vietnamese armed forces who attacked Phong Nhị Village’, and cc cannot even specify who said it. Therefore, the statement is not credible.
(8) Defendant claims that the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam (Plaintiff’s Evidence No. 16-1 and 16-2) does not accept that the ROK Armed Forces committed a massacre alleged by Plaintiff because it states ‘5. Conclusions. None.’ Defendant argues that it is unfair to allege that the ROK Armed Forces committed war crimes based on partial information in that report.
The Report of Investigation by the Inspector General of the U.S. Military Assistance Command, Vietnam aimed to collect, analyze and organize various documents relevant to the alleged civilian killings by the ROK Armed Forces. The fact that the report does not offer a concrete conclusion does not affect the substance in this case. Furthermore, considering the circumstances and evidence examined in above (1) to (6), we accept that the ROK Armed Forces was involved in the incident in question.
D) Therefore, the aforementioned argument of Defendant is not accepted.
2) Finding on the argument that acts in question were either combat actions during hostilities or in accidents, and therefore acts of self-defense
A) Defendant claims there exists a possibility that the victims of this case including Plaintiff and her family was either the Viet Cong or colluding with the Viet Cong, and were killed in combat actions during hostilities or in accidents, and thus, that the acts constitute self-defense.
(1) An academic paper submitted by Defendant (Defendant’s Evidence No. 7, ‘A Study of the Monster Dragon Operation I [Operation Goeryong No.1] by the ROKMC during the Vietnam War: Focused on the Phong Nhat-Phong Nhi Civilian Massacre’) assesses Phong Nhất and Phong Nhị Villages as an area where the Viet Cong were fairly active or at least an area where some residents followed North Vietnam while the others followed South Vietnam. The operational picture of the Vietnam War (also known as the Resistance War Against the U.S.) in the official historical record of Điện An, Điện Bàn, which the paper refers to, indicates Phong Nhị and Phong Nhất Villages as fighting villages (làng chiến đấu)[10] and that each village had a secret underground bunker (hầm bí mật).
(2) A memoir of a commanding officer who served in the Vietnam War (Defendant’s Evidence No. 13) narrates the entry on ‘Phong Nhị Village search operation’ of 27 July 1968. It illustrates that eight members of the Viet Cong fled from Phong Nhị Village in the morning of the day before the ROK Armed Forces searched the village; there was an underground organization of the Viet Cong in Phong Nhị Village; and two Viet Cong girls were arrested during the search.
B) However, the operational picture of the Vietnam War in the official historical record of Điện An, Điện Bàn referred to by the aforementioned academic paper does not clearly indicate when the described circumstances existed at which point of time exactly (depending on the ongoing patterns of the war and passage of time, the circumstances in the villages in question could have easily changed). Between the entry in the memoir of a commanding officer who served in the Vietnam War and the incident of this case exists a 5-month difference. Based on the aforementioned facts and circumstances as well as the submitted evidence alone, it is difficult to accept that there existed a reason for the service members of the First Company to treat Plaintiff and her family as the Viet Cong or those who colluded with the Viet Cong during the operation in Phong Nhị Village on 12 February 1968 or there were circumstances in which they could have mistaken Plaintiff and her family as such. Nor is there evidence to prove otherwise.
Moreover, it is difficult to accept there existed a circumstance in which Plaintiff, her family and relatives, who were in the shelters, could have been armed or mistaken to be armed based on the submitted evidence alone.
C) It is true that at the time of the incident, dozens of shots from the northwest were fired at the First Company while they were heading west from National Route 1, and that the Company conducted a search operation in Phong Nhị Village. However, in light of the accepted facts based on the aforementioned evidence discussed in 4. B. 1), the First Company’s shooting of Plaintiff and her family cannot be considered an act of self-defense.
(1) Even during an armed conflict, indiscriminately killings of those who directly participated in hostilities and those who did not are not allowed when they did not directly participate in or cannot reasonably be suspected to have directly participated in hostilities. The existence of cases in which the Viet Cong engaged in combat without using military uniforms pretending to be civilians cannot justify such killings.
(2) Plaintiff’s relatives, T and K, were respectively working for the South Vietnamese Popular Force and South Vietnam Rural Development Cadre Group, and those who were shot at the incident of this case included family members of the South Vietnamese Popular Force. In light of this, it is difficult to accept that the First Company went through the process of rooting out enemies (a process in which they distinguish combatants and non-combatants and confirm whether they directly participated in hostilities) while searching the village.
Rather, according to the statements of the survivors of the incident, eyewitnesses, members of the First Company, and liaison officers of the U.S. Marine Corps as previously discussed, most individuals including Plaintiff and her family were unarmed when the First Company opened fire indiscriminately, and many of those shot were infants.
(3) While taking photographs of the scene, Corporal N of the Combined Action Platoons noticed that no bullet holes were found near the bodies, which indicates that the residents were shot at close range or stabbed by bayonets (Plaintiff’s Evidence No. 16-1 and 16-2, written statement of Corporal N). This reinforces the finding that the circumstances at the time of the incident was not during hostilities engaged with enemies.
K gave a detailed testimony in court that he directly witnessed the service members of the First Company gathered ten or so residents including Plaintiff’s mother, killed them with guns and throwing grenades, and that he has gone into Phong Nhị Village with the Combined Action Platoons for relief activities, witnessed Plaintiff and her older brother C being rescued and discovered the bodies of the killed residents.
(4) The operational records of 12 February 1968 in <Korean Soldiers Deployed to Vietnam> (Plaintiff’s Evidence No. 10-3) document the military gains of the 6th Company of the 2nd Battalion, which discovered two caves occupied by enemies, killed five, and captured weapons. It also records other military gains such as that of the 8th Company of the 3rd Battalion, which engaged with enemies during the operation, killed twenty-two, and captured weapons.
If the victims of this case were the Viet Cong or colluders, and the First Company killed them during hostilities as Defendant claims, it would have been considered military gains from an operation and thus documented in detail in <Korean Soldiers Deployed to Vietnam>. However, the operational records of 12 February 1968 on the First Company make no reference to this. From this, it can be surmised that the incident in Phong Nhị Village was not during hostilities.
D) Therefore, the argument of self-defense made by Defendant is also not accepted.
D. Finding on Defendant’s defense of statute of limitations
1) Defendant’s arguments
The period of 5 years set under the National Finance Act Article 96 Paragraph (2) (previously Budget and Accounts Act (the Act before wholly amended by Law No. 4102 on 31 March 1989) Article 71 Paragraph (2)) has lapsed for Plaintiff’s right to claim compensation for damage. Even If the statute of limitation ran from when Plaintiff became an adult, more than 40 years have passed since then. If the statute of limitations ran from when important evidence, the statements of the ROK Armed Forces service members were available, which Plaintiff claims as important evidence, it would be in or around 2013 or 2014. If the statute of limitations ran from when the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam became accessible, it would be in or around June 2000. In either case, the 3-year statute of limitations under the Civil Act Article 766 Paragraph (1) has lapsed, and thus, Plaintiff has lost the right to claim compensation for damage.
2) Relevant law
The right to claim compensation under the former part of the State Compensation Act Article 2 Paragraph (1) is the right of payment against the State. Under the National Finance Act Article 96 Paragraph (2) (previously Budget and Accounts Act (the Act before wholly amended by Law No. 4102 on 31 March 1989) Article 71 Paragraph (2)) such right may be lost if it is not exercised within 5 years due to the statute of limitations (2000Da57856, Supreme Court of Korea, Decision of 24 April 2001; 2006Da70929 & 2006Da70936, Supreme Court of Korea, Decision of 27 March 2008, etc.)
Moreover, under the State Compensation Act Article 8, the Civil Act Article 766 Paragraph (1) is applicable to the right to claim compensation under the former part of the State Compensation Act Article 2 Paragraph (1), and thus, such right may be lost due to the statute of limitations if it is not exercised within 3 years commencing from the date on which the victim or their legal representative discover such damage and the identity of the perpetrator. ‘The date when the victim discovers such damage and the perpetrator's identity’ is when the victim practically and concretely discovers the tort's elements, such as the tort caused by public officials performing their official duties and the damage caused by the tort, etc. However, determining when the victim practically and concretely discovers the factual elements of the tort should be based on the reasonable assessment of circumstances as a whole in each individual case, such as various objective circumstances and the context under which the claim for compensation became available (2009Da33754, Supreme Court of Korea, Decision of 13 April 2012)
Aside from the aforementioned provisions on the statute of limitations, the general clause on calculating the statute of limitations under the Civil Act Article 166 Paragraph (1) applies to the calculation of the longer 5-year period and the shorter 3-year period of the statute of limitations as above regarding the right to claim state liability for compensation. Under this general clause, the statute of limitations runs from when the right objectively arises and ‘when it becomes possible to exercise’ such right, and does not run when such rights cannot be exercised (On calculation of the shorter 3-year period of the statute of limitations regarding the right to claim state liability for compensation, 2009Da33754, Supreme Court of Korea, Decision of 13 April 2012; 2020Da210976, Supreme Court of Korea, Decision of 12 January 2023, etc.)
3) Finding whether the statute of limitations has lapsed
A) In light of the following accepted facts and circumstances based on the aforementioned evidence and Plaintiff’s Evidence No. 13 through 16, 18, 21 through 23, 25 through 30, 32 through 38, 40 and 41, as well as the purport of the overall pleadings, we view that there were objective factors hindering Plaintiff from exercising the right to claim compensation for damage in this case until around the time Plaintiff filed this suit. Thus, we find that Plaintiff brought this suit before the lapse of the statute of limitations.
(1) The U.S. Armed Forces and the ROK Armed Forces withdrew from Vietnam in 1973. After North Vietnam’s full-scale attack, the South Vietnamese government surrendered, and the Vietnam War officially ended on April 30, 1975. After that, the Socialist Republic of Vietnam was established. The diplomatic relations between the ROK and Vietnam were severed until 2 February 1992. In other words, the war continued for 7 years after the incident in this case. When the war ended, Plaintiff could not claim compensation for the damage since the diplomatic relations between the ROK and Vietnam were severed.
(2) At the time of the incident, Plaintiff was 8 years old, and most of her family members were killed or sustained serious injuries, which made her practically an orphan. Under the circumstances, Plaintiff could not even receive elementary education and had led a difficult life.
(3) In April 1968, immediately after the incident in this case, the ROK Armed Forces in Vietnam ordered a military police investigator to investigate the incident and the members of the First Company with an aim to make it ‘the work of the Viet Cong disguised as the ROK Armed Forces’, and attempted to cover up the truth (Plaintiff’s Evidence No. 18). Following in June 1968, the commander of the ROKFV (General Chae, Myung-shin) made a statement that ‘it was committed by the Viet Cong who disguised as the ROK Armed Forces’ in an official letter. These are facts and circumstances to conclude that there were attempts to cover up the truth of this case.
(4) It appears that Defendant in 1969 conducted extensive fact-finding through an investigative agency (Korean Central Intelligence Agency). However, to this day, Defendant refuses to release the relevant materials for diplomatic reasons, etc.; does not confirm whether there was a fact-finding investigation and thus continues to cover up the truth of this case.
(5) Even after the diplomatic relations between the ROK and Vietnam were established, the formal position of Defendant on whether there were civilian killings committed by the service members of the ROK Armed Forces was that ‘it could not be confirmed’. The surviving victims including Plaintiff on 4 April 2019, filed a petition against Defendant for fact-finding and recovery of damage. On 9 September 2019, Defendant replied, ‘civilian killings of the ROK Armed Forces cannot be confirmed by the domestic documents. Fact-finding would require a joint investigation with the Vietnamese government, but it is not feasible.’
(6) During armed conflicts, etc., violations of basic human rights, depriving life, and causing bodily injuries committed systematically and collectively by service members of armed forces are easily covered up and thus difficult to seek remedy in court for. Moreover, since Plaintiff is an alien in the ROK, the aforementioned cover ups and obstruction of fact-finding by Defendant, Plaintiff had difficulty until recently in even identifying the military unit that was the perpetrator in this case.
(7) Within the ROK, there have been media reports, declassification, and release of the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam, interviews and statements from the members of the involved units who were investigated on this case, etc. However, it appears that there have been no officially confirmed materials on this case domestically. And then one of the lawyers in a non-governmental organization, working towards fact-finding etc. related to the civilian killings committed by the ROK Armed Forces during the Vietnam War (one of Plaintiff’s legal representatives in this case) filed a request for information disclosure against the Director of the National Intelligence Service on 2 August 2017. The request was based on the reason that ‘on November 1969, the Korean Central Intelligence Agency, the preceding agency of the National Intelligence Agency, investigated three individuals who served as the commanding officers of the First Company at the time of the incident (V, W and X)’, and sought the disclosure of ‘the list of documents written after the investigation of these individuals’ and ’the list of reports and other documents, etc. on this incident’ written by the Korean Central Intelligence Agency. When the request was denied, a suit was filed seeking cancellation of the decision to refuse the information disclosure (2017GuHap83614, Seoul Administrative Court). Through the court decision on 27 July 2018, it was confirmed that ‘on 14 August 1972, in order to preserve them in the form of microfilms, the National Intelligence Agency photographed the documents written after the investigation of three individuals who served as the commanding officers of the First Company at the time of the incident, and the list for such documents exists’ (later on 6 April 2021, only the portion of the microfilms recording the names and places of origin of the investigated individuals from such list was submitted by the Director of National Intelligence Agency). Through this process, the existence of official records, which corroborate the media interview and statements from the members of the involved units, was finally confirmed.
(8) If Plaintiff, without the aforementioned evidence and official records, filed a vague suit for state liability for compensation against Defendant, Plaintiff would not have had a practical suit since there would have been little possibility of such a claim being granted.
B) In light of the above, while the ROK government or the military authorities might not have directly hindered the exercise of the right to claim state liability for compensation, Plaintiff objectively had factors hindering her from exercising the right to claim compensation for damage in this case until around the time Plaintiff filed this suit.
4) Whether Defendant’s argument that the statute of limitations has lapsed amounts to an abuse of rights
A) On the other hand, the obligor exercising the right of objection based on the lapse of the statute of limitations is also governed by the fundamental principles of the Korean Civil Act, the principle of good faith, and the prohibition of abuse of rights. In the following cases, the obligor arguing the lapse of the statute of limitations is against the principle of good faith and amounts to abuse of rights and, thus, cannot be allowed: the obligor rendered it impossible or significantly difficult for the obligee to exercise the right or to suspend the statute of limitations; the obligor led the obligee to believe that such measure is unnecessary; objectively, there existed factors hindering the obligee from exercising the right; the obligor led the obligee to believe that the obligor would not claim the statute of limitations after it has lapsed; the need to protect the right of the obligee is significant, and there exists circumstances such as the obligor has performed the obligation for another obligee under the same conditions, etc., and thus, allowing the obligor to refuse to perform would be significantly unjust or unfair; etc. special circumstances exist (2011Da36091, Supreme Court of Korea, Decision of 13 October 2011).
B) In light of the aforementioned circumstances and reasons discussed in 3) A) (1) through (8), even if the statute of limitations for Plaintiff’s right to claim compensation for damage had lapsed after the 5-year period, Defendant’s refusal to perform the obligation to compensate for damage caused by the tort against Plaintiff based on the lapse of statute of limitations would be significantly unjust. We do not allow such refusal because it is against the principle of good faith and the abuse of rights.
E. The scope of compensation for damage
1) Relevant law
When a court calculates the amount of compensation, it needs to balance the circumstances of the victim, such as the victim’s age, occupation, social status, wealth and living conditions, the degree of pain caused by the damage, the negligence of the victim, etc. against the circumstances of the perpetrator, the degree of willfulness and negligence, the motivation behind and causes of the act, wealth, social status, age, the attitude after the incident, etc. This is in accordance with the equitable distribution of liability as the principle of compensation (2007Da77149, Supreme Court of Korea, Decision of 24 December 2009).
There are cases where a long period of time had passed between when the tort was committed and when the hearing is closed, and when the hearing is closed there is a significant change in certain factors compared to when the tort was committed, factors which must be considered in the calculation of the amount of compensation such as currency value, etc. In such cases, as an exception, it should be considered that damages for delay of the obligation to pay compensation runs from the base period of calculating the amount of the compensation, the date in which the hearing at a trial court proceeding is closed. In these exceptional cases where the damages for delay of the obligation to pay compensation for the tort are considered to run from the date in which the hearing at a trial court proceeding is closed, the court needs to consider the reasons why the payment was delayed and calculate the principal of the compensation based on the date in which the hearing at a trial court proceeding is closed, rather than to add the damages for delay from when the tort is committed as usually required (2009Da103950, Supreme Court of Korea, Decision of 13 January 2011; 2018Da224408, Supreme Court of Korea, Decision of 29 September 2022, etc.)
2) Finding
Considering the unlawfulness and degree of the human rights violation in this case, Plaintiff’s age, the details and degree of damage and pain Plaintiff experienced caused by the tort, the amount of compensation calculated in similar cases, the fact that more than 50 years have passed from the occurrence of the tort, and thus, price and currency value have significantly changed which requires the increase of the compensation, etc., the amount of compensation is calculated as KRW 40,000,000.
Additionally, this case should be considered one of the exceptional cases in which damages for delay of the obligation to pay compensation runs from the base period of calculating the amount of the compensation, the date in which the hearing at a trial court proceeding is closed.
3) Sub-conclusion
Defendant is liable to pay Plaintiff the amount of KRW 30,000,100, which was sought by Plaintiff, and the damages for delay which is calculated with the annual interest of 5% under the Civil Act from 15 November 2022, the date the hearing at a trial court proceeding is closed, to 7 February 2022 [sic] , the date of this judgment until which Defendant can reasonably protest the existence of the obligation or its scope, and with the annual interest of 12% under the Act On Special Cases Concerning Expedition Of Legal Proceedings from the day after the date of judgment until the date in which the payment is completed.
5. Conclusion
Plaintiff’s claims within the aforementioned scope are accepted for good cause, and the rest is dismissed without good cause, and the judgment is rendered as per the Ruling.
Judge PARK, Jinsoo
[1] [Translator’s Note] Also known as the First Indochina War in some cultures.
[2] [Translator’s Note] Also known as the Second Indochina War in some cultures.
[3] [Translator’s Note] Later changed to the 100th Logistical Command.
[4] [Translator’s Note] Also known as the Vietnam People's Armed Forces.
[5] [Translator’s Note] Also known as the Republic of Vietnam Military Forces.
[6] [Translator’s Note] ROK Ministry of Defense, Institute for Military History (국방부 군사편찬연구소 (구 전사편찬위원회)), 파월한국군전사 (1978-1985). A series of historical records regarding the ROK participating in the Vietnam War.
[7] [Translator’s Note] p.75 of the Evidence No.10-2, which corresponds to p.330 of the Korean Soldiers Deployed to Vietnam, Vol. 4.
[8] [Translator’s Note] Specifically referred to as ‘Phong Nhi’ and ‘Phong Nhut’ here instead of ‘Phong Nhị’ and ‘Phong Nhất’ to reflect how these names were spelled in <Korean Soldiers Deployed to Vietnam> and its attached map.
[9] [Translator’s Note] The original passage reads as follows (in Korean and Hanja): “Suoi Co Ca(江) 西岸인 마을 Phong Nhut (2)의 유력한 지형을 따라 南北으로 兵力을 散開시켜 제2, 제7중대와 같이 協調 된 지역에 대한 차단임무를 수행하였다.”
[10] [Note] The North Vietnamese equivalent of the Strategic Hamlet Program (ấp chiến lược).
[Annex]
1. Vietnam Civil Code Article 598
(English / Korean translation) Article 598. Compensation for damage caused by law enforcers The State must compensate for damage caused by law enforcers as prescribed in the Law on compensation liability of the State. 국가는 국가배상책임법에 규정된 대로 공무집행자(법집행자)에 의하여 발생한 손해를 배상하여야 한다. |
(Original Text) Điều 598. Bồi thường thiệt hại do người thi hành công vụ gây ra Nhà nước có trách nhiệm bồi thường thiệt hại do hành vi trái pháp luật của người thi hành công vụ gây ra theo quy định của Luật trách nhiệm bồi thường của Nhà nước. |
2. Vietnam Law on State Compensation Liability Articles 2 and 3
(English / Korean Translation) Article 2. Entities eligible for compensation Eligible for compensation are individuals and organizations suffering from material damage or having mental suffering caused by official duty performers within the scope of state compensation liability prescribed in this Law. 본 법에 규정된 주 보상 책임 범위 내에서 공무 수행자에 의해 물질적 피해를 입거나 정신적 고통을 겪고 있는 개인 및 조직은 보상을 받는다. Article 3. Interpretation of terms In this Law, the terms and expressions below are construed as follows: 1. Damage sufferer means an individual or organization that suffers from a material damage or has a mental suffering caused by an official duty performer within the scope of state compensation liability prescribed in this Law. 2. Official duty performer means a person who is elected, approved, recruited or appointed in accordance with the law on cadres and civil servants and relevant laws to a position in a state agency to perform administrative management or conduct legal proceedings or judgment execution, or a person who is assigned by a competent state agency to perform a task related to administrative management, legal proceedings or judgment execution. 1. 손해를 입은 자란 이 법에 규정 된 국가 배상책임의 범위 내에서 공무 수행자에 의해 물질적 손해를 입거나 정신적 고통을 겪은 개인 또는 조직을 의미한다. 2. 공무 수행자란 간부 및 공무원에 관한 법률 및 관련법에 따라 국가 기관에서 행정 관리를 수행하거나 법적 절차 또는 판결 집행을 수행하기 위해 선출, 승인, 채용 또는 임명되는 사람 혹은 관할 국가 기관에서 행정 관리, 법적 절차 또는 판결 집행과 관련된 작업을 수행하도록 지정된 사람을 의미한다. |
(Original Text) Điều 2. Đốitượngđượcbồithường Cá nhân, tổ chức bị thiệt hại về vật chất, thiệt hại về tinh thần do người thi hành công vụ gây ra thuộc phạm vi trách nhiệm bồi thường của Nhà nước được quy định tại Luật này. Điều 3. Giảithíchtừngữ Trong Luật này, các từ ngữ dưới đây được hiểu như sau: 1. Người bị thiệt hại là cá nhân, tổ chức bị thiệt hại về vật chất, thiệt hại về tinh thần do người thi hành công vụ gây ra thuộc phạm vi trách nhiệm bồi thường của Nhà nước được quy định tại Luật này. 2. Người thi hành công vụ là người được bầu cử, phê chuẩn, tuyển dụng hoặc bổ nhiệm theo quy định của pháp luật về cán bộ, công chức và pháp luật có liên quan vào một vị trí trong cơ quan nhà nước để thực hiện nhiệm vụ quản lý hành chính, tố tụng hoặc thi hành án hoặc người khác được cơ quan nhà nước có thẩm quyền giao thực hiện nhiệm vụ có liên quan đến hoạt động quản lý hành chính, tố tụng hoặc thi hành án |
3. Constitution of Vietnam Articles 30 and 48
(영문본/ 국문본) Article 30. 1. Every one has the right to lodge complaints and denunciations with the competent State bodies, organizations, and individuals in against the illegal acts of State organs, organizations, and individuals. 2. The competent State bodies, organizations, and individuals must receive and handle the complaints and denunciations. The person who has suffered loss and injury shall be entitled to damages for any material harm suffered and his reputation rehabilitated. 1. 모든 사람은 기관, 단체, 개인의 법률 위반에 관하여 관할 기관, 단체, 개인에게 이의신청, 고소할 권리를 가진다. 2. 관할 기관, 단체, 개인은 이의 신청, 고소를 접수, 해결하여야 한다. 손해를 받은 사람은 법률 규정에 따라 물질, 정신 및 명예회복에 관하여 배상을 받을 권리를 가진다. Article 48. Foreigners residing in Vietnam must obey the Constitution and law of Vietnam; they shall receive State protection with regard to their lives, possessions and legitimate interests in accordance with the provisions of Vietnamese law. 베트남에 거주하는 외국인은 베트남 헌법과 법률을 준수하여야 하며, 베트남 법률에 따라 생명, 재산 및 정당한 권리, 이익의 보호를 받는다. |
(Original Text) Điều 30 1. Mọi người có quyền khiếu nại, tố cáo với cơ quan, tổ chức, cá nhân có thẩm quyền về những việc làm trái pháp luật của cơ quan, tổ chức, cá nhân. 2. Cơ quan, tổ chức, cá nhân có thẩm quyền phải tiếp nhận, giải quyết khiếu nại, tố cáo. Người bị thiệt hại có quyền được bồi thường về vật chất, tinh thần và phục hồi danh dự theo quy định của pháp luật. Điều 48 Người nước ngoài cư trú ở Việt Nam phải tuân theo Hiến pháp và pháp luật Việt Nam; được bảo hộ tính mạng, tài sản và các quyền, lợi ích chính đáng theo pháp luật Việt Nam. |
4. Vietnam Civil Procedures Code Article 465
(English / Korean Translation) Article 465. Procedural rights and obligations of foreigners, foreign agencies and organizations and branches or representatives offices of foreign agencies and organizations and international Organizations or their representatives in Vietnam, States of foreign countries 1. Foreigners, foreign agencies and organizations, international organizations, representative offices of international organizations in Vietnam may initiate lawsuits to Vietnamese Courts to request the protection of their legitimate rights and interests when being infringed upon or when being in dispute. 1. 베트남의 외국인, 외국 기관 및 단체, 국제기구, 국제기구 대표사무소는 자신의 합법적 권리와 이익의 보호를 요청하기 위하여, 그 권리와 이익이 침해당하거나 분쟁 중일 때 베트남 법원에 소송을 제기할 수 있습니다. 2. When participating in civil procedures, foreigners, foreign agencies and organizations and branches or representatives offices in Vietnam of foreign agencies and foreign organizations and international organizations or their representatives in Vietnam and States of foreign countries shall have rights and obligations to conduct procedures like Vietnamese citizens, agencies and organizations. 2. 외국인, 외국 기관, 외국 단체, 외국 혹은 국제기관의 베트남에 있는 대표 사무소나 지점 등이 민사 소송 절차에 참여할 때, 민사 소송 절차에 참여하기 위해 베트남 시민, 기관, 단체 등과 동일한 권리와 의무를 가집니다. |
(Original Text) Điều 465. Quyền, nghĩa vụ tố tụng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài và tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam, Nhà nước nước ngoài 1. Người nước ngoài, cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu bảo vệ quyền và lợi ích hợp pháp của mình khi bị xâm phạm hoặc có tranh chấp. Chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài theo ủy quyền có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu bảo vệ quyền và lợi ích hợp pháp của cơ quan, tổ chức nước ngoài ủy quyền bị xâm phạm hoặc có tranh chấp. 2. Khi tham gia tố tụng dân sự, người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam, Nhà nước nước ngoài có quyền, nghĩa vụ tố tụng như công dân, cơ quan, tổ chức Việt Nam. 3. Nhà nước Việt Nam có thể áp dụng nguyên tắc có đi có lại để hạn chế quyền tố tụng dân sự tương ứng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài mà Tòa án của nước đó đã hạn chế quyền tố tụng dân sự đối với công dân, cơ quan, tổ chức Việt Nam, chi nhánh, văn phòng đại diện tại nước ngoài của cơ quan, tổ chức Việt Nam. |
5. Vietnam Law on Administrative Procedures Article 299
(English / Korean Translation) Article 299. Procedural rights and obligations of foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam 1. Foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam may institute lawsuits at Vietnamese courts to request review of administrative decisions or administrative acts when having grounds to believe that such decisions or acts are illegal and infringe upon their lawful rights and interests. 1. 외국인, 외국 기관, 외국 단체, 외국 혹은 국제기관의 베트남에 있는 대표 사무소나 지점 등은 (베트남 정부의) 행정적 결정이나 행위가 위법이고, 이것이 그들의 합법적 권리와 이익을 침해한다고 믿을 근거가 있을 때 해당 행정적 결정이나 행위에 대한 검토를 요청하기 위해 베트남 법원에 소송을 제기할 수 있다. 2. When participating in administrative procedures, foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam have procedural rights and obligations like Vietnamese citizens, agencies and organizations. 2. 행정절차에 참여할 때, 베트남의 외국인, 외국 기관, 외국 단체, 외국 혹은 국제 기관의 베트남에 있는 대표 사무소나 지점 등은 베트남 시민, 기관, 단체와 같은 절차상 권리와 의무를 갖는다. 3. The Vietnamese State may apply the principle of reciprocity to restrict relevant administrative procedural rights of foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam which the courts of their countries have restricted toward Vietnamese citizens, agencies and organizations, and branches and representative offices of overseas Vietnamese agencies and organizations. 3. 베트남은 상호주의 원칙을 적용하여 베트남 시민, 기관 및 조직, 해외 베트남 기관 및 조직의 지점 및 대표의 (행정 소송 권리를) 제한하는 국가의 외국인, 외국 기관 및 단체, 외국기관 및 단체의 지사 또는 대표 사무소, 베트남의 국제기구 또는 대표 기관의 관련 행정 소송 권리를 제한할 수 있습니다. |
(Original Text) Điều 299. Quyền, nghĩa vụ tố tụng của cơ quan, tổ chức, cá nhân nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam 1. Người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu xem xét lại quyết định hành chính, hành vi hành chính khi có căn cứ cho rằng quyết định, hành vi đó là trái pháp luật và xâm phạm đến quyền và lợi ích hợp pháp của mình. 2. Khi tham gia tố tụng hành chính, cơ quan, tổ chức, cá nhân nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền, nghĩa vụ tố tụng như công dân, cơ quan, tổ chức Việt Nam. 3. Nhà nước Việt Nam có thể áp dụng nguyên tắc có đi có lại để hạn chế quyền tố tụng hành chính tương ứng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, cơ quan đại diện của tổ chức quốc tế tại Việt Nam mà Tòa án của nước đó đã hạn chế quyền tố tụng hành chính đối với công dân Việt Nam, cơ quan, tổ chức Việt Nam, chi nhánh, văn phòng đại diện của cơ quan, tổ chức Việt Nam tại nước ngoài. |
[Annex 2]
<Korean Soldiers Deployed to Vietnam> Attached Map: a sketch map of Operation Goeryong No.1 progress, concerning the operation of the First Company
SEOUL CENTRAL DISTRICT COURT
JUDGMENT
Case
2020GaDan5110659 Compensation (state)
Plaintiff
[REDACTED]
Socialist Republic of Vietnam
Legal Representative: [REDACTED]
Defendant
Republic of Korea
Banpo-daero 158, Seocho-gu, Seoul (Seoul High Prosecutor’s Office)
Representative of the State: Minister of Justice HAN, Donghoon
Legal Representative: Korea Government Legal Service
Close of Hearing
15 Nov 2022
Date of Decision
7 Feb 2023
RULING
1. Defendant shall pay Plaintiff KRW 30,000,100, with the annual interest of 5% from 15 November 2022 to 7 February 2023, and with the annual interest of 12% from the day after to the day in which the payment is completed.
2. The rest of Plaintiff’s claims are dismissed.
3. Defendant shall bear the costs of litigation.
4. The ruling of paragraph 1 may be subject to provisional execution.
PURPORT OF THE CLAIM
Defendant shall pay Plaintiff KRW 30,000,100, with the annual interest of 12% from the day after the date in which the copy of the complaint was delivered to the date in which the payment is complete.
REASONING
1. Background
A. Immediately after World War II, the Democratic Republic of Vietnam was proclaimed in Hanoi, Vietnam, and the First Vietnam War[1] broke out between the forces led by the Democratic Republic of Vietnam and France, which lasted for 8 years. In July 1954, ceasefire accords were signed and divided Vietnam at the 17th parallel into the Democratic Republic of Vietnam in the north [hereinafter, “North Vietnam”] and the Republic of Vietnam in the south [hereinafter, “South Vietnam”]. Not long after the division, the National Liberation Front of South Vietnam [hereinafter, “Viet Cong”] funded by North Vietnam, formed an insurgency. In December 1961, as the United States of America [U.S.] decided to extend economic and military aid to Vietnam, the Second Vietnam War [hereinafter, “Vietnam War”][2] broke out.
B. Although in the early phase of the Vietnam War, the U.S. government was involved with the war only by deploying mostly military advisory groups and launching bombardment in North Vietnam, in February 1965, the U.S. began to deploy a large number of combat troops and got actively engaged in the Vietnam War. Meanwhile, in July 1964, the South Vietnamese government sought aid from countries including the Republic of Korea [ROK], and, in September 1964, the ROK deployed its medics and military engineers. Following the request from the South Vietnamese and U.S. governments to deploy combat troops, the ROK in October 1965 deployed the Capital Infantry Division (Maengho Unit), Logistics Support Command[3] (Sipjaseong Unit), 2nd Marine Corps Brigade (Chungryong Unit), and in September 1966 deployed the 9th Infantry Division (Baekma Unit) respectively to the regions of Quy Nhon, Cam Ranh and Nha Trang, etc. From these periods to its withdrawal in March 1973, the ROK Armed Forces operated in the regions of Vietnam.
C. Plaintiff [REDACTED] is a national of the Socialist Republic of Vietnam [hereinafter “Vietnam”] and was born in July 1960. Plaintiff is from Phong Nhị, Thành Phong [The name was changed and is now called Điện An since 1975], Điện Bàn, Quảng Nam, Vietnam [hereinafter “Phong Nhị Village”], and is currently residing in Phong Nhị Village. Plaintiff’s father A passed away in 1967, and in February 1968, Plaintiff had mother B (B, born 1934), older brother C (C, born 1953), older sister D (D, born 1957) and younger brother E (E, born 1963).
D. Phong Nhị Village is a small village in Duy Xuyên, Điện Bàn, Quảng Nam, according to the administrative division of 1968, located approximately 25 km south of Đà Nẵng, a city in central Vietnam, near the National Route 1 in Điện Bàn heading to Đà Nẵng [hereinafter, “National Route 1”]. On National Route 1, which connects the northern and southern parts of Vietnam, the Combined Action Platoons (CAP; the U.S. platoons organized as small individual units for intelligence gathering) formed by the U.S. Marine Corps and South Vietnamese Popular Force were stationed.
E. On the morning of 31 January 1968 (the Lunar New Year), the North Vietnamese armed forces[4] and Viet Cong launched large scale attacks in various regions of Vietnam (so-called “Tet Offensive”). The U.S. Armed Forces and South Vietnamese armed forces,[5] having anticipated this uprising, launched counterattacks immediately, and battles raged on in all regions of Vietnam.
F. On 30 January 1968, immediately after the completion of Operation Biryong which redeployed the ROK 2nd Marine Corps Brigade, also known as Chungryong Unit [hereinafter “2nd Marine Corps Brigade”], from the region of Chu Lai to Hội An, it was predicted that the North Vietnamese armed forces were planning large scale attacks and will violate the ceasefire accords, advance north capturing Hội An and Điện Bàn, etc., and attack Đà Nẵng.
G. The 2nd Marine Corps Brigade launched the Operation Goeryong No.1 which planned to defend its tactical area of responsibility (TAOR) in Quảng Nam (including Hiếu Nhơn, majority of Điện Bàn and Duy Xuyên) from the Tet Offensive of the North Vietnamese armed forces and Viet Cong, to repel them from the region, and to seek out and annihilate the remaining military forces of the opponent that escaped or scattered. The Operation Goeryong No. 1 was launched from 30 January 1968 to 29 February 1968. During that period, the 2nd Marine Corps Brigade also carried out a joint operation with the U.S. Armed Forces, Operation Nut Cracker, which was a so-called vacuuming operation to relocate civilians from their villages of origin to shelters and to root out the members of the Viet Cong hiding within the villages.
H. Plaintiff alleges that the service members of the 1st Company, 1st Battalion of the 2nd Marine Corps Brigade [hereinafter, “First Company”] willfully shot and injured Plaintiff and her older brother C, and killed the rest of her family on 12 February 1968. Plaintiff filed this suit against Defendant seeking state liability for compensation.
[Established Facts] Undisputed facts, Plaintiff’s Evidence No.10, 11, 16, 30, 33 and 42, as well as overall purport of the pleadings
2. Decisions on the preliminary objections
A. Defendant’s preliminary objections
1) Article 19 of the ROK-South Vietnam Military Working Arrangement, signed on 5 September 1965 between the ROK and South Vietnam, stipulates that any damage to a national of South Vietnam caused by the ROK Armed Forces shall be compensated in accordance with negotiations between the ROK and South Vietnam. This arrangement precludes a national of Vietnam from bringing a lawsuit directly to a court of the ROK as Plaintiff did in this case.
2) Moreover, the Supplemental Working Arrangement between COMROKFV and COMUSMACV under Article 15 of the Military Working Arrangement between COMROKFV and COMUSMACV states ‘any claim relating to compensation for damage caused by the ROKFV (Republic of Korea Forces, Vietnam) during non-combat related activities shall be resolved by the ROKFV Claims Service, and the U.S. provides payment vouchers’. It also states ‘any combat claim on damage to the South Vietnamese government or individuals arising from an act of ROKFV occurred in preparation of combat, while on a combat operation or during return therefrom shall be referred to the Village Chief, District Chief or Province Chief where the claim originated’ and shall be resolved accordingly.
3) According to the abovementioned agreements, this case brought to a court of the ROK by Plaintiff, who was a national of South Vietnam at the time, without following the process of negotiations between the governments is illegitimate.
B. Finding
1) According to Defendant’s Evidence No.1 and No.2, the following facts can be accepted.
(1) The ROK-South Vietnam Military Working Arrangement was signed by the ROK Army Major General F and the South Vietnamese Army (Army of the Republic of Vietnam) Major General G on 5 September 1965. On the next day, the Military Working Arrangement between COMROKFV and COMUSMACV was also signed by the ROK Army Major General F and the U.S. Army Major General H. Moreover, the Supplemental Working Arrangement between COMROKFV and COMUSMACV was signed by the H, Chief of Staffs of the U.S. Military Assistance Command, Vietnam (USMACV), and I, Deputy Commander of the ROKFV Command.
(2) Article 19 of the ROK-South Vietnam Military Working Arrangement stipulates that ‘matters relating to compensation for damage to property and persons of the South Vietnamese government or its nationals caused by service members of the ROK Armed Forces shall be decided by a separate negotiation between the governments of the ROK and South Vietnam’.
(3) Article 15 of the Military Working Arrangement between COMROKFV and COMUSMACV states, ‘compensations for damage to property and persons of the South Vietnamese government or individuals shall be governed by a separate arrangement’. Accordingly, the Supplemental Working Arrangement between COMROKFV and COMUSMACV Articles 1 and 3 specify that ‘any claim relating to compensation for damage caused by the ROKFV during non-combat related activities shall be resolved by the ROKFV Claims Service, and the U.S. provides payment vouchers’. The Supplemental Working Arrangement between COMROKFV and COMUSMACV Annex A Articles 4 and 5 specify that ‘any combat claim on damage to the South Vietnamese government or individuals caused by the ROKFV occurred in preparation for combat, while on a combat operation or during return therefrom shall be referred to the Village Chief, District Chief or Province Chief where the claims originated’ and shall be resolved accordingly [hereinafter “Working Arrangements, etc.”].
2) However, for the following reasons, the Working Arrangements, etc. are merely agreements made between the military authorities of the ROK and South Vietnam and of the ROK and U.S., and are not treaties signed by the ROK. Thus, it cannot be considered to possess the legal force of precluding Plaintiff, an individual who is a national of Vietnam, from exercising the right to make a claim to the ROK.
(1) The Constitution of the Republic of Korea Article 73 specifies that the President has the power to conclude and ratify treaties. The Vienna Convention on the Law of Treaties Article 7 recognizes that persons who are not Heads of States, Heads of Government and Ministers for Foreign Affairs, heads of diplomatic missions or representatives accredited by States to an international organization, etc. are considered as representing a State for the purpose of expressing the consent of the State to be bound by a treaty only if they produce appropriate full powers. In other words, a valid treaty can only be concluded by a certain group of State representatives (or those who are entrusted with such qualification by States). However, there is no ground to accept that the parties who signed the ROK-South Vietnam Military Working Arrangement, the Military Working Arrangement and Supplemental Working Arrangement between COMROKFV and COMUSMACV are considered to hold proper authorization to conclude a treaty (they did not have the power to conclude and ratify treaties, nor are there any circumstance that suggests that they produced full powers of representation when they signed the Working Arrangements, etc.) Accordingly, the Working Arrangements, etc. are merely agreements on military operations between agencies and cannot be considered to have the effects of treaties. In fact, the Working Arrangements, etc. are not found in the list of treaties maintained by the ROK Ministry of Foreign Affairs.
(2) The Supplemental Working Arrangement between COMROKFV and COMUSMACV Annex A Articles 4 and 5 states that any combat claim on damage to civilians who are South Vietnam nationals caused by the ROKFV shall be made to the Village Chief, District Chief or Province Chief where the claim originated and resolved accordingly. However, this is an agreement made between the ROK and U.S., and thus cannot be considered to be legally binding a national of Vietnam.
(3) The ROK-South Vietnam Military Working Arrangement Article 19 states matters relating to compensation for damage to civilians who are South Vietnam nationals shall be decided by a separate negotiation between the governments of the ROK and South Vietnam. It is, however, difficult to find any circumstance suggesting that a separate, concrete negotiation and agreement were reached as a follow-up measure.
3) It cannot be considered that the government of Vietnam waivered the right of victims who are its nationals to claim compensation for damage or to bring a claim directly to the courts of the ROK instead of following the compensation process agreed upon between states.
For these reasons, this part of Defendant’s preliminary objection is not sustained.
C. Whether a mutual guarantee exists under the State Compensation Act Article 7
1) Defendant argues that since the State Compensation Act Article 7 requires ‘a mutual guarantee with a corresponding state if a victim is an alien’ for the right to claim state liability for compensation to rise, it needs to be determined whether a mutual guarantee between the ROK as Defendant and Vietnam exists by examining the Vietnamese law and court decisions, etc. and comparing the conditions for the right to claim state liability for compensation. Defendant argues that if there is no mutual guarantee, this case should be dismissed.
2) The State Compensation Act Article 7 purports to prevent undue disadvantage to the ROK and to promote fairness in international relations and thus requires ‘a mutual guarantee with a corresponding state exists if a victim is an alien’ as a condition for the right to claim state liability for compensation to rise. However, requiring the conditions for the right to claim state liability for compensation in a corresponding state to be equal to or more lenient than those of the ROK can not only lead to excessively limiting the right to claim state liability for compensation for aliens which is incompatible with the present-day reality where international exchanges are frequent, but also result to unreasonable cases where other states refuse to protect the nationals of the ROK. Given that, it would be appropriate to consider that a mutual guarantee exists under the State Compensation Act Article 7, where the respective conditions in the ROK and the corresponding state for the right to claim state liability for compensation are not significantly unbalanced, and such conditions in the corresponding state is no more onerous than those of the ROK as a whole and thus, effectively have little to no difference in important considerations. Moreover, a mutual guarantee can be sufficiently established by comparing the laws, court decisions and practices, etc. relating to such conditions, and needs not to be established by a signed treaty between the ROK and the corresponding state. Even when there is no case where the corresponding state has accepted a claim for state liability for compensation made by a national of the ROK, a mutual guarantee can be established if it can be expected that such claim will be in fact, accepted (2013Da208338, Supreme Court of Korea, Decision of 11 June 2015).
3) The Vietnam Civil Code Article 598 states, ‘the State must compensate for damage caused by law enforcers [public servants] as prescribed in the Law on State Compensation Liability’. The Vietnam Law on State Compensation Liability Articles 2 and 3 states that ‘eligible for compensation are individuals and organizations suffering from material damage or having mental suffering caused by official duty performers’ but do not distinguish the eligible individuals between its nationals and aliens (the English and Korean translation of the provisions, as well as their original texts, can be found in the Annex 1 Items 1 and 2 of the list). Moreover, the Constitution of Vietnam stipulates that aliens residing in Vietnam are protected of their life, property, and legitimate rights and interests in accordance with the provisions of Vietnamese law (Constitution of Vietnam Articles 30 and 48). The Vietnam Civil Procedures Code Article 465 and the Vietnam Law on Administrative Procedures Article 299 specify that aliens possess the same rights and obligations as Vietnamese citizens when participating in procedures, and thus, guarantee procedural rights and obligations (the English and Korean translation of the provisions as well as their original texts can be found in the Annex 1 items 3 and 5 of the list).
4) As such, the conditions for the right to claim state liability for compensation to rise under the Vietnam Civil Code and the Vietnam Law on State Compensation Liability are not significantly different from that of the State Compensation Act. It can be expected that Vietnam will accept a claim of a national of the ROK for state liability for compensation.
Therefore, it is accepted that a mutual guarantee between the ROK and Vietnam under the State Compensation Act Article 7 is established.
3. Finding on the applicable law
A. Summary of the arguments made by the Parties
Plaintiff alleges that service members of the ROK Armed Forces willfully shot and injured Plaintiff and her older brother C, and killed the rest of her family on 12 February 1968, and filed this lawsuit against Defendant seeking state liability for compensation.
Plaintiff argues that since the State Compensation Act is most relevant to the legal relationship of this case, the applicable law should be the State Compensation Act in accordance with the Act on Private International Law Article 8 Paragraph (1). On the other hand, Defendant argues that since the tortious acts alleged by Plaintiff took place in Phong Nhị Village of Vietnam, which was governed by the government of South Vietnam at the time, the applicable law should be the South Vietnamese law that was in force at the time of the acts in accordance with the Act on Private International Law Article 32 Paragraph (1).
B. Designating the applicable law and exceptions
1) The Act on Private International Law, wholly amended by Law No. 18670 of 4 January 2022 and entered into force on 5 July 2022, Addenda Article 3 (Transitional Measures concerning Application of Applicable Law) specifies that ‘the previous provisions shall apply to the applicable law of matters that occurred before this Act enters into force’. Thus, the previous Act on Private International Law before the amendment [hereinafter, “the previous Act on Private International Law”] Articles 8 and 32 shall apply to this case.
2) Regarding the applicable law on torts, the previous Act on Private International Law Article 32 states: Paragraph (1) ‘a tort shall be governed by the law of the place where it occurred’; Paragraph (2) ‘in case, at the time of a tort, the habitual residences of the tortfeasor and the injured party are located in the same country, the law of the country shall govern irrespective of the provision of Paragraph (1)’; Paragraph (3) ‘in case the legal relationship existing between the tortfeasor and the injured party are violated by the tort, the applicable law of such legal relationship shall govern irrespective of the provisions of Paragraphs (1) and (2).’ Article 33 of the same Act on ex post facto agreement on the applicable law specifies that ‘irrespective of the provision of Article 32, the parties may choose, after the occurrence of a tort, the law of the Republic of Korea as the applicable law by agreement. However, this does not affect the right of a third party.’ According to these provisions, the previous Act on Private International Law adopts the principle of lex loci delicti commissi (the current Act on Private International Law Article 52 follows the same principle). However, this is preceded by first the application of an ex post facto agreement on the applicable law (Article 33), and then of the principle of accessory connection (rattachement accessoire) (Article 32 Paragraph (3)) followed by of the principle of lex domicilii communis (Article 32 Paragraph (2)). Only when these special clauses do not apply, the principle of lex loci delicti commissi (Article 32 Paragraph (1)) applies.
3) At the same time, the previous Act on Private International Law Article 8 Paragraph (1) specifies ‘in case the applicable law specified by this Act and the corresponding legal relationship only have an insignificant connection, while the law of another country, which is most closely connected with such legal relationship, evidently exists, the law of the other country shall govern’, recognizing the exception to designation of the applicable law.
C. The applicable law in this case
1) In this case, since there is no possibility of applying the principle of accessory connection (Article 32 Paragraph (3)) or of lex domicilii communis (Article 32 Paragraph (2)), the principle of lex loci delicti commissi (Article 32 Paragraph (1)), exception to designation of the applicable law (Article 8 Paragraph (1)) or ex post facto agreement on the applicable law (Article 33) shall be followed to determine the applicable law.
2) Taking into account of the following circumstances, the State Compensation Act can be considered to be the most relevant law to the legal relationship of this case. In accordance with the choice of the injured party as well as the ex post facto agreement between the parties on the applicable law, the State Compensation Act shall be the applicable law in the determination of whether the tort is established and whether to accept Defendant’s state liability for compensation in this case.
(1) All principles of lex loci enshrined in the Act on Private International Law seek to designate the law that is most relevant to the matter at hands. There is, however, a possibility where the result of applying the provisions of the Act on Private International Law is contrary to such principles. As a precaution to such cases and to ensure the correct application of the principle of lex loci under the Act on Private International Law, it has in place Article 8 Paragraph (1) as a general exception clause.
(2) The previous Act on Private International Law, while maintaining the principle of lex loci delicti commissi in regards to the applicable law of torts, applies the principle of lex domicilii communis based on the common habitual residence (Article 32 Paragraph (2)), of accessory connection (Article 32 Paragraph (3)) and ex post facto agreement on the applicable law (Article 33), etc. to relax the application of the principle of lex loci delicti commissi to a certain degree. However, the Act does not have in place special clauses regarding different types of torts. Thus, the exception clause shall be applied to reach the appropriate conclusion on the applicable law.
(3) The applicable law on torts governs the establishment and effects of torts. Thus, the capacity to commit torts, unlawfulness, causation, reasons for attribution, persons with the right to claim compensation for damage, the right to indemnity between joint tortfeasors, the means, types, range and amount of compensation for damage, as well as the statute of limitations of the right to claim compensation for damage caused by torts, etc., are governed by the applicable law.
(4) Plaintiff alleges that the service members of the First Company committed a tort during the Vietnam War while carrying out a military operation by shooting and injuring civilians of Vietnam such as Plaintiff and killing her family, and claims Defendant’s state liability for compensation. The service members of the First Company are nationals of the ROK who were deployed to Vietnam by the ROK government and were conducting a series of operations in Vietnam under orders.
If the service members of the First Company have caused harm to other persons in violation of laws while carrying out operations, it is considered that the State Compensation Act regulates the most valid and relevant legal relationship in order to seek state liability for damage against Defendant to which the service members belong to. The State Compensation Act purports to prescribe the liability to compensate for damage and the procedures for such compensation in case a public official of the State (the ROK) or local governments willfully or negligently caused damage to other persons in violation of laws in performing their official duties (Articles 1 and 2). The Act, however, does not distinguish whether the place in which such violation has occurred is within or outside of the ROK territory. Furthermore, in case the victim is an alien, the Act applies the same as it does to the ROK nationals if there is a mutual guarantee with the corresponding state (Article 7).
(5) The reason why the previous Act on Private International Law follows the principle of lex loci delicti commissi is because it is more reasonable and practical in the perspective of fairness to consider the societal conditions in which the tort is committed and to apply the legal consciousness of such society than to apply the domestic law of the ROK, and because it also meets the expectations of the parties (78Da1343, Supreme Court of Korea, Decision of 13 November 1979). In this case, the tort was committed in Vietnam, and thus applying the legal consciousness of where the tort occurred to this case can be considered as an option (this could be ‘the South Vietnamese law’ considering the government of the region at the time or, based on the current circumstances, it could be ‘the Vietnamese law’). This could be in Plaintiff’s interest, who is the injured party in this case. However, Plaintiff gives up such interest in applying the (South) Vietnamese law and argues that the ROK should be the applicable law in this case. Unless there exist exceptional circumstances not to do so, it is appropriate to respect the choice of the applicable law of the injured party.
(6) On the South Vietnamese law, which is likely to become the applicable law in this case, if the principle of lex loci delicti commissi is to be followed, neither Plaintiff nor Defendant submit any relevant information. When the foreign law is unclear even though the court has conducted an ex officio investigation, the court cannot refuse to continue the proceedings for the lack of information but is to follow the foreign customary law according to the fundamental principle of civil law on the source of law. In case the court cannot verify the foreign customary law as well, sound reasoning is to be followed (98Da25037, Supreme Court of Korea, Decision of 9 June 2000). In this case, it does not appear that such sound reasoning would be significantly different from the provisions of the current Vietnam Law on State Compensation Liability or the State Compensation Act.
(7) The Act on Private International Law on statutory claims in general, including the right to claim compensation for damage, allows the parties to ex post facto agree upon the ROK law (lex fori) as the applicable law (Article 33). If such agreement exists, it takes precedence over the other provisions. Such ex post facto agreement needs not to be explicit but can be made implicitly.
Plaintiff and Defendant are in dispute over the establishment of the tort and state liability for compensation, as well as the statute of limitations of the right to claim compensation for damage caused by the tort. Both of their arguments are premised on the application of the ROK law (Defendant argues that, under the premise of the State Compensation Act being applied, the statute of limitations of Plaintiff’s right to claim compensation for damage is 5 years at the longest, or 3 years if shorter). Such attitudes and stances of Plaintiff and Defendant can be interpreted as them ex post facto agreeing to choose the ROK law as the applicable law.
4. Finding on the merits
A. Summary of the arguments made by the parties
1) Plaintiff
A) The unknown service members of the First Company on 12 February 1968 in Phong Nhị Village, Thành Phong, Điện Bàn, Quảng Nam, Vietnam, willfully shot Plaintiff, who was a civilian, and caused a serious injury in her abdomen, and killed or injured Plaintiff’s family.
B) Because the service members belonging to Defendant willfully shot Plaintiff and her family, killing and injuring them, which are acts that violate human dignity, deprive life and cause bodily injuries, Defendant is liable to compensate for emotional damage Plaintiff sustained from such acts.
2) Defendant
A) Although Plaintiff argues that the perpetrator of this case is the service members of the ROK Armed Forces, this is mostly based on the statements from the side of the victim, and these statements alone cannot prove that the perpetrator in fact belonged to the ROK Armed Forces. During the Vietnam War, the psychological warfare agents of the North Korean armed forces at the time carried out various psychological operations against the ROK Armed Forces, including the 2nd Marine Corps Brigade, and cooperated with the Viet Cong as well. The possibilities of the involvement of the North Vietnamese armed forces, Viet Cong and North Korean armed forces in this case cannot be ruled out. Even the residents of the village knew the perpetrator as members of the North Vietnamese armed forces. Thus, it cannot be considered that the service members of the ROK Armed Forces are specified as the perpetrator.
B) Even if the acts in question were caused by the ROK Armed Forces, there was a justifiable context to mistake the residents of Phong Nhị Village, including Plaintiff and her family, as the Viet Cong or those who cooperate with the Viet Cong. Thus, these acts were either combat actions during hostilities or in accidents, therefore acts of self-defense.
C) Even if Plaintiff’s right to claim compensation for damage is accepted, the statute of limitations has expired as considerable time has passed, and thus, Plaintiff has lost that right.
B. Finding on whether the state liability for compensation is established
1) Admitted facts
According to Plaintiff’s Evidence No. 10, 11, 13, 14, 16, 18, 21, 22, 23, 25 through 30, 44, 45 (including branch numbers if they exist), respective testimonies of Witnesses J and K, the result of the examination of parties on Plaintiff, the following facts can be admitted.
A) On 12 February 1968, between 08:00 to 10:30, the service members of the First Company (of 1st Battalion of the 2nd Marine Corps Brigade) left the base and headed north via National Route 1 and arrived near where the CAP D-2 was. They then reached a point between the locations of the CAP D-2 and D-1 via National Route 1 (east of Phong Nhị Village). From there, they got out of National Route 1 and headed west.
B) While the First Company was heading west as above, between 10:30 to 11:30 as they were passing through Phong Nhị Village, dozens of shots coming from the northwest were fired at them. One member was injured. Meanwhile, on National Route 1, a LVT of the U.S. Armed Forces carrying out the joint operation was damaged by a landmine.
C) After being shot at, the First Company carried out a search operation in Phong Nhị and Phong Nhất Villages between 10:30 to 15:00. Parts of the First Company (presumably the 1st and 2nd Platoons in the front) searched the villages and dragged out the residents hiding in their houses (mostly women, the elderly and children). These service members gathered the residents in several empty lots and handed them over to the rear before advancing to Suoi Co Ca (River) to establish a line of defense. At the same time, some service members (presumably the 3rd Platoon) in the rear with the Company headquarters shot the gathered residents. They opened fire at the other residents and burned down houses while searching Phong Nhị and Phong Nhất Villages.
D) At the time, Plaintiff’s aunt L (born 1936, 32 years old), aunt L’s son M (born 1967, 9 to 10 months old at the time of the shooting), older brother C (born 1953, 15 years old) older sister D (born 1957, 11 years old), Plaintiff (8 years old at the time), younger brother E (born 1963, 6 years old), and a neighbor child from who came over (12 years old), a total of seven people, were at Plaintiff’s house. None of them were armed. They heard the gunshots in the area and hid in the bomb shelter at the house. Plaintiff’s mother B (born 1934, 34 years old) was outside at the time and not with them.
E) The service members of the First Company came into Plaintiff’s house and ordered Plaintiff’s family, etc., to exit the shelter threatening them with grenades and guns. When Plaintiff’s family, etc., one by one exited the shelter, the service members opened fire, and burned down Plaintiff’s house (when Plaintiff’s aunt holding Plaintiff’s cousin, tried to stop them, they stabbed her with bayonets). Afterward, they moved on to another place.
Due to this, Plaintiff’s aunt, cousin (the aunt’s son), older sister, younger brother, and the neighbor's child died on the spot. Plaintiff sustained a severe injury in her abdomen and Plaintiff’s older brother (C) in his abdomen and rear but did not die.
F) Plaintiff’s mother B was outside at the time. The service members of the First Company forcefully gathered Plaintiff’s mother and ten or so other residents (mostly women and children) in one place and killed them with guns.
G) Plaintiff and her older brother (C) sought shelter at a neighbor’s house. When Plaintiff went out to look for her mother, she fainted and passed out. On the same day, after around 15:00, the CAP D-2, a platoon of the Combined Action Platoons, formed a patrolling party with the militia and entered Phong Nhị Village. They rescued the survivors and recovered the bodies. A member of the Combined Action Platoons (Corporal N) took photographs of the scene. Plaintiff and her older brother were rescued and evacuated to the hospital via helicopter, where they underwent multiple surgeries and received medical treatments.
2) Establishment of state liability for compensation
According to the admitted facts, the unknown service members of the First Company who are the nationals of the ROK, forced Plaintiff’s aunt, young Plaintiff and her older sister, older brother, younger brother, etc. to come out of the shelter and immediately shot and stabbed them, killing Plaintiff’s family (aunt, older sister, younger brother and cousin) except for Plaintiff and Plaintiff’s older brother (C), and injuring Plaintiff and Plaintiff’s older brother. They also gathered the residents of the village including Plaintiff’s mother in one place and killed them on the spot. These acts are clearly tortious acts that violate human dignity, deprive life and cause bodily injuries. Therefore, Defendant is liable to compensate for emotional damage Plaintiff sustained from such acts.
C. Decisions on Defendant’s arguments
1) Decisions on the argument that the acts were committed by the Viet Cong or North Korean armed forces disguised as the ROK service members
A) Defendant argues that there exist cases where the Viet Cong disguised as the ROK Armed Forces and massacred civilians such as the ‘Linh Sơn Pagoda Incident’, and that the acts in this case could have been committed by the Viet Cong or North Korean armed forces disguising as the ROK Armed Forces.
B) According to Defendant’s Evidence No. 3 through 8, the following facts and circumstances are admitted.
(1) The so-called ‘Linh Sơn Pagoda Incident’ of October 1969 used to be known as a case where the service members of the ROK Armed Forces killed Buddhist monks in the Linh Sơn Pagoda. Later, the ROK-Vietnam joint investigation discovered that it was committed by the Viet Cong, who covered it up as the acts of the ROK Armed Forces. This was reported in the ROK media from 1969 to 1971.
(2) In <Korean Soldiers Deployed to Vietnam>[6] (Plaintiff’s Evidence No.10-2, Vol.4, p.75[7]), an incident was recorded where the 25th Company of the 2nd Marine Corps Brigade searched the Villages of Quang Loc Dong (1) – Phong Ho (2) (approximately 3 km away from Phong Nhị Village), found six enemies, (Viet Cong) disguised as the ROK service members, engaged in combat and killed them.
(3) The ROK Armed Forces intelligence report dated 1 February 1968 refers to an incident ‘in Điện Bàn, Quảng Nam, when a North Korean platoon working with the V-25th Battalion attempted infiltration, ambush and assassination in the ROK Armed Forces Command Post (CP) and Units’. Based on these materials, etc., we could assume that the North Korean armed forces participated in the Vietnam War by deploying psychological warfare agents, etc.
C) However, from the admitted facts and circumstances based on the evidence mentioned above, we acknowledge that the acts of killing and injuring Plaintiff and her family, in this case, were committed by the service members of the First Company.
(1) There are those who directly experienced and survived this incident and stated that the First Company was the perpetrator. These individuals include Plaintiff and Plaintiff’s older brother C who were in the shelter at the house with their family, later found by the First Company and sustained serious injuries from gunshot, and were rescued later, as well as O, P (Plaintiff’s Evidence No. 16-1 and 16-2) and Q (Plaintiff’s Evidence No. 28-1 and 28-2) who were rescued by the Combined Action Platoons from the scene. They all stated that the ROK Armed Forces service members attacked them. These individuals in person, saw the perpetrator at close range. All except for Plaintiff (who was eight years old at the time) were over 15 and capable of sufficiently recognizing the perpetrator they saw as ROK Armed Forces. Especially, C saw the service members of the ROK Armed Forces on multiple occasions before the incident, and on the day of the incident, C saw the service members of the ROK Armed Forces passing by the house. Considering all these factors, the statements made by the survivors are credible.
(2) Eyewitnesses also stated that the First Company was the perpetrator. Such eyewitnesses include the members of the Combined Action Platoons, First Lieutenant R, Staff Sergeant S, Corporal N, T, and U (Plaintiff’s Evidence No. 16) who watched the First Company attacking Phong Nhị Village from National Route 1. Witness K, who was a part of the South Vietnam Rural Development Cadre Group, received a message by radio that the ROK Armed Forces was attacking Phong Nhất and Phong Nhị Villages, and came to National Route 1 to watch the First Company attacking Phong Nhị Village (Witness K testimony). In their statements, these eyewitnesses also identified the service members attacking Phong Nhị Village as the ROK Armed Forces.
First Lieutenant R of the Combined Action Platoons, in particular, contacted the fire support coordination center of the ROK Armed Forces. He requested the center to confirm the coordinates of the 81 mm mortar-related mission on a location near a paddy field located south of the village. Yet, his request was denied because the ROK Armed Forces were carrying out an operation in the area. His request for permission to enter Phong Nhị Village was also denied for the same reason (Plaintiff’s Evidence No. 16-1 and 16-2, First Lieutenant R written statements). This clearly indicates that some units of the First Company were in Phong Nhị Village when the village was under attack.
(3) Some members of the First Company also stated that the First Company was the perpetrator. These include 1st Platoon Leader V (Plaintiff’s Evidence No. 13, 21-1 through 21-4), 2nd Platoon Leader W (Plaintiff’s Evidence No. 13), 3rd Platoon Leader X (Plaintiff’s Evidence No. 13), 2nd Platoon Member J (Plaintiff’s Evidence No. 22, Witness J testimony) and 2nd Platoon Member Y (Plaintiff’s Evidence No. 23), etc. They all stated that some of the First Company service members killed the village residents during the operation on 12 February 1968.
In particular, 1st Platoon Leader V and 2nd Platoon Leader W entered the village after being shot. They searched the village, found the residents, and handed them over to the platoons in the back. As they continued advancing, they heard gunshots from the back and learned that they were from the platoons in the back opening fire at the residents. Moreover, the next day, 2nd Platoon Leader W saw the residents laying down the bodies of those killed the day before and staring at the ROK service members with resentment in their eyes. From this, he was able to confirm that the gunshots he heard the night before came from the platoons in the back, opening fire at the residents handed over to the back. 2nd Platoon Member J, while patrolling National Route 1 on 13 February 1968, the day after the incident of Phong Nhị Village, saw the residents laying down the bodies of those killed the day before. According to his statement, when he returned to the Company base, he heard that the members of the other platoons attacked the village's residents at the order of the Company commander.
These statements from the members of the First Company, considering it is difficult to think of a reason that they would lie about their own experiences as those who were the closest to the incident, are highly credible.
(4) When the First Company was mounting the operation in the areas of Phong Nhị and Phong Nhất Villages on 12 February 1968, liaison officers of the U.S. Marine Corps ‘Private First Class Z’ and ‘Private First Class aa’ accompanied them. Private First Class aa stated that on 12 February 1968, the First Company attacked villages following the orders from the Company commander, and it was one of the platoons, not the entire Company, that attacked the villages (Plaintiff’s Evidence No. 16-1 and 16-2). Privates First Class Z and aa did not specifically mention the name of the village attacked by the First Company. However, their description of the village attacked by the First Company is similar to the photographs and descriptions, provided by Corporal N of the Combined Action Platoons of Phong Nhị Village attacked by the ROK Armed Forces. From this, we acknowledge that the village described by Privates First Class Z and aa, attacked by the First Company, was Phong Nhị Village.
(5) After the incident, the chief of the military police investigative section investigated the incident and, in a media interview, said ‘the ROK Armed Forces were shot at and one of their own collapsed when they were passing by the village. Subsequently, they surrounded the village and massacred the residents. Yet, due to the orders of the high rank, it was covered up as the work of the Viet Cong disguised as the ROK Armed Forces’ (Plaintiff’s Evidence No. 18). This statement also strongly supports the claim that the perpetrator of this case was the First Company.
(6) Defendant claims that the operational records of 12 February 1968 in <Korean Soldiers Deployed to Vietnam>, which is highly credible as the official document according to Defendant, does not state that the First Company attacked Phong Nhị Village, and it proves that the First Company was not involved with the incident occurred in Phong Nhị Village.
<Korean Soldiers Deployed to Vietnam> Vol.4, p.349 describes the activities of the First Company on 12 February 1968 as follows.
The 1st Company (Commander, Captain bb) advanced north, patrolling National Route 1, entered Phong Nhut Village, and turned the direction of attack westward. At 11:05, the front unit attacked Objective (11) when the enemies shot approximately 30 rounds from the west. The Company subdued the enemies by firing a 4.2-inch mortar at the location where the shots originated. One service member was injured and was evacuated.
Meanwhile, a U.S. LVT came into contact with a “booby trap” on National Route 1. One U.S. service member on the vehicle was injured, and the vehicle itself was heavily damaged. The rear unit of the Company ordered the 1st Platoon (Leader, First Lieutenant V) to defend it. Thus, the Company, only with the 2nd and 3rd Platoons, attacked and searched Objectives (12) and (13) without enemy contact. The Company then extended the troops toward the north and south following the advantageous terrains of Phong Nhut Village (2) west of Suoi Co Ca (River), and carried out an interdiction operation on the shared area with the 2nd and 7th Companies.
Then the 1st Company was shot at by enemies from across the river, and one was additionally injured. At 13:10, they occupied Phong Nhut Village (2), assumed a hasty defense and spent the night.
As Defendant argues, <Korean Soldiers Deployed to Vietnam> records that the First Company advanced north following National Route 1, turned west to reach the area of operation near Suoi Co Ca (River). According the record, the First Company entered ‘Phong Nhut Village’ (Phong Nhất Village) instead of ‘Phong Nhi Village’ (Phong Nhị Village)[8] before turning the direction of attack westward, and the front unit of the Company attacked ‘Objective (11)’ at 11:05.
However, the fact that the First Company turned west from National Route 1 and entered ‘Phong Nhi Village’ to reach the area of operation near Suoi Co Ca (River) can be confirmed by Annex 2 ‘<Korean Soldiers Deployed to Vietnam> Attached Map: a sketch map of Operation Goeryong No.1 progress’ (Plaintiff’s Evidence No. 11). The map of Annex 2 indicates the locations of National Route 1, Phong Nhi Village, Phong Nhut Village (1), Phong Nhut Village (2) and Suoi Co Ca (River) as well as the movement of the First Company. It indicates that the First Company passed through Objective (11), i.e., Phong Nhi Village (Phong Nhị Village) first, and then passed through Objectives (12) and (13), i.e., Phong Nhut Village (2) and advanced to Suoi Co Ca (River).
Specifically, the sketch map of Operation Goeryong No.1 progress does not include the name ‘Phong Nhut’; instead, it includes ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’. Since the military records require accuracy, if the same names of places are distinguished as (1) and (2), it clearly specifies the names such as ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’. Indeed, the operational records of the First Company on 12 February 1968 in <Korean Soldiers Deployed to Vietnam> state, ‘The Company then extended the troops toward the north and south following the advantageous terrains of Phong Nhut Village (2) west of Suoi Co Ca (River), and carried out an interdiction operation on the shared area with the 2nd and 7th Companies.’[9] The name ‘Phong Nhut Village (2)’ is specifically distinguished and recorded as such. In light of this, it appears highly unusual that <Korean Soldiers Deployed to Vietnam> did not specifically distinguish the name of the village the First Company entered after they got out of National Route 1 as Phong Nhut Village (1) or Phong Nhut Village (2), and instead used the name ‘Phong Nhut Village’ which does not exist in the aforementioned sketch map of the operation progress. Moreover, according to the said sketch map, ‘Objective (11)’ is located east of ‘Phong Nhut (1)’ and ‘Phong Nhut (2)’, i.e., the village that is referred to as Phong Nhut Village. But then the records of <Korean Soldiers Deployed to Vietnam> which state that the Company ‘advanced north patrolling National Route 1, entered Phong Nhut Village, and turned the direction of attack westward. At 11:05, the front unit attacked Objective (11)’ is inconsistent. This raises suspicion that <Korean Soldiers Deployed to Vietnam> intentionally recorded the name of ‘Phong Nhi’ as ‘Phong Nhut’ to hide the fact that the First Company entered Phong Nhi (Phong Nhị Village) at the time of the incident of this case.
Furthermore, considering that <Korean Soldiers Deployed to Vietnam> is the official record compiled by the ROK Ministry of Defense, it seems unlikely that it would truthfully record war crimes such as civilian killings. Especially with regard to the incident that occurred in Phong Nhị Village, the commander of the ROKFV at the time (General Chae, Myung-shin) in June 1968 made a statement that ‘it was committed by the Viet Cong disguised as the ROK Armed Forces’ in an official letter. <Korean Soldiers Deployed to Vietnam>, which was compiled 4 years after the such statement, is likely to be written to reflect that official position. In fact, the operational records of the First Company on 12 February 1968 in <Korean Soldiers Deployed to Vietnam> omit or falsify some of the facts. (The detailed combat reports document that on 12 February 1968, the First Company withdrew to the Company base while conducting the interdiction operation. 2nd Platoon Member J, who participated in the operation in question, also stated that in the middle of the interdiction operation, suddenly an order to withdraw came, and they withdrew to the Company base. It is also noteworthy that these ‘detailed combat reports’ record that not only the First Company but also the 2nd and 7th Companies, who were in the 1st Battalion as well and conducting the interdiction operation with them, also withdrew following the orders. However, <Korean Soldiers Deployed to Vietnam> states to the effect that the First Company continued with the interdiction operation and was stationed all night, which raises suspicion of falsified records. These circumstances suggest that there was an attempt to cover up the incident in this case, and thus, it is difficult to accept Defendant’s argument that the First Company was clearly not the perpetrator since there is no reference to the First Company attacking Phong Nhị Village in <Korean Soldiers Deployed to Vietnam>.
(7) Defendant argues that the statement of cc, who ‘was told that it was the Vietnamese armed forces (Viet Cong) who attacked Phong Nhị Village’ (Plaintiff’s Evidence No. 29-1 and 29-2, 41) supports that the service members who attacked Phong Nhị Village belonged to the Viet Cong and were disguised as the ROK Armed Forces.
However, when the incident occurred, as cc indicated in the statement, cc was ‘hiding in the shelter at the house after hearing gunshots, and came out only after everything was over’ (Plaintiff’s Evidence No. 41). cc did not see the incident in this case. Moreover, cc has given a vague statement that cc heard from another person that ‘it was the Vietnamese armed forces who attacked Phong Nhị Village’, and cc cannot even specify who said it. Therefore, the statement is not credible.
(8) Defendant claims that the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam (Plaintiff’s Evidence No. 16-1 and 16-2) does not accept that the ROK Armed Forces committed a massacre alleged by Plaintiff because it states ‘5. Conclusions. None.’ Defendant argues that it is unfair to allege that the ROK Armed Forces committed war crimes based on partial information in that report.
The Report of Investigation by the Inspector General of the U.S. Military Assistance Command, Vietnam aimed to collect, analyze and organize various documents relevant to the alleged civilian killings by the ROK Armed Forces. The fact that the report does not offer a concrete conclusion does not affect the substance in this case. Furthermore, considering the circumstances and evidence examined in above (1) to (6), we accept that the ROK Armed Forces was involved in the incident in question.
D) Therefore, the aforementioned argument of Defendant is not accepted.
2) Finding on the argument that acts in question were either combat actions during hostilities or in accidents, and therefore acts of self-defense
A) Defendant claims there exists a possibility that the victims of this case including Plaintiff and her family was either the Viet Cong or colluding with the Viet Cong, and were killed in combat actions during hostilities or in accidents, and thus, that the acts constitute self-defense.
(1) An academic paper submitted by Defendant (Defendant’s Evidence No. 7, ‘A Study of the Monster Dragon Operation I [Operation Goeryong No.1] by the ROKMC during the Vietnam War: Focused on the Phong Nhat-Phong Nhi Civilian Massacre’) assesses Phong Nhất and Phong Nhị Villages as an area where the Viet Cong were fairly active or at least an area where some residents followed North Vietnam while the others followed South Vietnam. The operational picture of the Vietnam War (also known as the Resistance War Against the U.S.) in the official historical record of Điện An, Điện Bàn, which the paper refers to, indicates Phong Nhị and Phong Nhất Villages as fighting villages (làng chiến đấu)[10] and that each village had a secret underground bunker (hầm bí mật).
(2) A memoir of a commanding officer who served in the Vietnam War (Defendant’s Evidence No. 13) narrates the entry on ‘Phong Nhị Village search operation’ of 27 July 1968. It illustrates that eight members of the Viet Cong fled from Phong Nhị Village in the morning of the day before the ROK Armed Forces searched the village; there was an underground organization of the Viet Cong in Phong Nhị Village; and two Viet Cong girls were arrested during the search.
B) However, the operational picture of the Vietnam War in the official historical record of Điện An, Điện Bàn referred to by the aforementioned academic paper does not clearly indicate when the described circumstances existed at which point of time exactly (depending on the ongoing patterns of the war and passage of time, the circumstances in the villages in question could have easily changed). Between the entry in the memoir of a commanding officer who served in the Vietnam War and the incident of this case exists a 5-month difference. Based on the aforementioned facts and circumstances as well as the submitted evidence alone, it is difficult to accept that there existed a reason for the service members of the First Company to treat Plaintiff and her family as the Viet Cong or those who colluded with the Viet Cong during the operation in Phong Nhị Village on 12 February 1968 or there were circumstances in which they could have mistaken Plaintiff and her family as such. Nor is there evidence to prove otherwise.
Moreover, it is difficult to accept there existed a circumstance in which Plaintiff, her family and relatives, who were in the shelters, could have been armed or mistaken to be armed based on the submitted evidence alone.
C) It is true that at the time of the incident, dozens of shots from the northwest were fired at the First Company while they were heading west from National Route 1, and that the Company conducted a search operation in Phong Nhị Village. However, in light of the accepted facts based on the aforementioned evidence discussed in 4. B. 1), the First Company’s shooting of Plaintiff and her family cannot be considered an act of self-defense.
(1) Even during an armed conflict, indiscriminately killings of those who directly participated in hostilities and those who did not are not allowed when they did not directly participate in or cannot reasonably be suspected to have directly participated in hostilities. The existence of cases in which the Viet Cong engaged in combat without using military uniforms pretending to be civilians cannot justify such killings.
(2) Plaintiff’s relatives, T and K, were respectively working for the South Vietnamese Popular Force and South Vietnam Rural Development Cadre Group, and those who were shot at the incident of this case included family members of the South Vietnamese Popular Force. In light of this, it is difficult to accept that the First Company went through the process of rooting out enemies (a process in which they distinguish combatants and non-combatants and confirm whether they directly participated in hostilities) while searching the village.
Rather, according to the statements of the survivors of the incident, eyewitnesses, members of the First Company, and liaison officers of the U.S. Marine Corps as previously discussed, most individuals including Plaintiff and her family were unarmed when the First Company opened fire indiscriminately, and many of those shot were infants.
(3) While taking photographs of the scene, Corporal N of the Combined Action Platoons noticed that no bullet holes were found near the bodies, which indicates that the residents were shot at close range or stabbed by bayonets (Plaintiff’s Evidence No. 16-1 and 16-2, written statement of Corporal N). This reinforces the finding that the circumstances at the time of the incident was not during hostilities engaged with enemies.
K gave a detailed testimony in court that he directly witnessed the service members of the First Company gathered ten or so residents including Plaintiff’s mother, killed them with guns and throwing grenades, and that he has gone into Phong Nhị Village with the Combined Action Platoons for relief activities, witnessed Plaintiff and her older brother C being rescued and discovered the bodies of the killed residents.
(4) The operational records of 12 February 1968 in <Korean Soldiers Deployed to Vietnam> (Plaintiff’s Evidence No. 10-3) document the military gains of the 6th Company of the 2nd Battalion, which discovered two caves occupied by enemies, killed five, and captured weapons. It also records other military gains such as that of the 8th Company of the 3rd Battalion, which engaged with enemies during the operation, killed twenty-two, and captured weapons.
If the victims of this case were the Viet Cong or colluders, and the First Company killed them during hostilities as Defendant claims, it would have been considered military gains from an operation and thus documented in detail in <Korean Soldiers Deployed to Vietnam>. However, the operational records of 12 February 1968 on the First Company make no reference to this. From this, it can be surmised that the incident in Phong Nhị Village was not during hostilities.
D) Therefore, the argument of self-defense made by Defendant is also not accepted.
D. Finding on Defendant’s defense of statute of limitations
1) Defendant’s arguments
The period of 5 years set under the National Finance Act Article 96 Paragraph (2) (previously Budget and Accounts Act (the Act before wholly amended by Law No. 4102 on 31 March 1989) Article 71 Paragraph (2)) has lapsed for Plaintiff’s right to claim compensation for damage. Even If the statute of limitation ran from when Plaintiff became an adult, more than 40 years have passed since then. If the statute of limitations ran from when important evidence, the statements of the ROK Armed Forces service members were available, which Plaintiff claims as important evidence, it would be in or around 2013 or 2014. If the statute of limitations ran from when the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam became accessible, it would be in or around June 2000. In either case, the 3-year statute of limitations under the Civil Act Article 766 Paragraph (1) has lapsed, and thus, Plaintiff has lost the right to claim compensation for damage.
2) Relevant law
The right to claim compensation under the former part of the State Compensation Act Article 2 Paragraph (1) is the right of payment against the State. Under the National Finance Act Article 96 Paragraph (2) (previously Budget and Accounts Act (the Act before wholly amended by Law No. 4102 on 31 March 1989) Article 71 Paragraph (2)) such right may be lost if it is not exercised within 5 years due to the statute of limitations (2000Da57856, Supreme Court of Korea, Decision of 24 April 2001; 2006Da70929 & 2006Da70936, Supreme Court of Korea, Decision of 27 March 2008, etc.)
Moreover, under the State Compensation Act Article 8, the Civil Act Article 766 Paragraph (1) is applicable to the right to claim compensation under the former part of the State Compensation Act Article 2 Paragraph (1), and thus, such right may be lost due to the statute of limitations if it is not exercised within 3 years commencing from the date on which the victim or their legal representative discover such damage and the identity of the perpetrator. ‘The date when the victim discovers such damage and the perpetrator's identity’ is when the victim practically and concretely discovers the tort's elements, such as the tort caused by public officials performing their official duties and the damage caused by the tort, etc. However, determining when the victim practically and concretely discovers the factual elements of the tort should be based on the reasonable assessment of circumstances as a whole in each individual case, such as various objective circumstances and the context under which the claim for compensation became available (2009Da33754, Supreme Court of Korea, Decision of 13 April 2012)
Aside from the aforementioned provisions on the statute of limitations, the general clause on calculating the statute of limitations under the Civil Act Article 166 Paragraph (1) applies to the calculation of the longer 5-year period and the shorter 3-year period of the statute of limitations as above regarding the right to claim state liability for compensation. Under this general clause, the statute of limitations runs from when the right objectively arises and ‘when it becomes possible to exercise’ such right, and does not run when such rights cannot be exercised (On calculation of the shorter 3-year period of the statute of limitations regarding the right to claim state liability for compensation, 2009Da33754, Supreme Court of Korea, Decision of 13 April 2012; 2020Da210976, Supreme Court of Korea, Decision of 12 January 2023, etc.)
3) Finding whether the statute of limitations has lapsed
A) In light of the following accepted facts and circumstances based on the aforementioned evidence and Plaintiff’s Evidence No. 13 through 16, 18, 21 through 23, 25 through 30, 32 through 38, 40 and 41, as well as the purport of the overall pleadings, we view that there were objective factors hindering Plaintiff from exercising the right to claim compensation for damage in this case until around the time Plaintiff filed this suit. Thus, we find that Plaintiff brought this suit before the lapse of the statute of limitations.
(1) The U.S. Armed Forces and the ROK Armed Forces withdrew from Vietnam in 1973. After North Vietnam’s full-scale attack, the South Vietnamese government surrendered, and the Vietnam War officially ended on April 30, 1975. After that, the Socialist Republic of Vietnam was established. The diplomatic relations between the ROK and Vietnam were severed until 2 February 1992. In other words, the war continued for 7 years after the incident in this case. When the war ended, Plaintiff could not claim compensation for the damage since the diplomatic relations between the ROK and Vietnam were severed.
(2) At the time of the incident, Plaintiff was 8 years old, and most of her family members were killed or sustained serious injuries, which made her practically an orphan. Under the circumstances, Plaintiff could not even receive elementary education and had led a difficult life.
(3) In April 1968, immediately after the incident in this case, the ROK Armed Forces in Vietnam ordered a military police investigator to investigate the incident and the members of the First Company with an aim to make it ‘the work of the Viet Cong disguised as the ROK Armed Forces’, and attempted to cover up the truth (Plaintiff’s Evidence No. 18). Following in June 1968, the commander of the ROKFV (General Chae, Myung-shin) made a statement that ‘it was committed by the Viet Cong who disguised as the ROK Armed Forces’ in an official letter. These are facts and circumstances to conclude that there were attempts to cover up the truth of this case.
(4) It appears that Defendant in 1969 conducted extensive fact-finding through an investigative agency (Korean Central Intelligence Agency). However, to this day, Defendant refuses to release the relevant materials for diplomatic reasons, etc.; does not confirm whether there was a fact-finding investigation and thus continues to cover up the truth of this case.
(5) Even after the diplomatic relations between the ROK and Vietnam were established, the formal position of Defendant on whether there were civilian killings committed by the service members of the ROK Armed Forces was that ‘it could not be confirmed’. The surviving victims including Plaintiff on 4 April 2019, filed a petition against Defendant for fact-finding and recovery of damage. On 9 September 2019, Defendant replied, ‘civilian killings of the ROK Armed Forces cannot be confirmed by the domestic documents. Fact-finding would require a joint investigation with the Vietnamese government, but it is not feasible.’
(6) During armed conflicts, etc., violations of basic human rights, depriving life, and causing bodily injuries committed systematically and collectively by service members of armed forces are easily covered up and thus difficult to seek remedy in court for. Moreover, since Plaintiff is an alien in the ROK, the aforementioned cover ups and obstruction of fact-finding by Defendant, Plaintiff had difficulty until recently in even identifying the military unit that was the perpetrator in this case.
(7) Within the ROK, there have been media reports, declassification, and release of the Report of Investigations by the Inspector General of the U.S. Military Assistance Command, Vietnam, interviews and statements from the members of the involved units who were investigated on this case, etc. However, it appears that there have been no officially confirmed materials on this case domestically. And then one of the lawyers in a non-governmental organization, working towards fact-finding etc. related to the civilian killings committed by the ROK Armed Forces during the Vietnam War (one of Plaintiff’s legal representatives in this case) filed a request for information disclosure against the Director of the National Intelligence Service on 2 August 2017. The request was based on the reason that ‘on November 1969, the Korean Central Intelligence Agency, the preceding agency of the National Intelligence Agency, investigated three individuals who served as the commanding officers of the First Company at the time of the incident (V, W and X)’, and sought the disclosure of ‘the list of documents written after the investigation of these individuals’ and ’the list of reports and other documents, etc. on this incident’ written by the Korean Central Intelligence Agency. When the request was denied, a suit was filed seeking cancellation of the decision to refuse the information disclosure (2017GuHap83614, Seoul Administrative Court). Through the court decision on 27 July 2018, it was confirmed that ‘on 14 August 1972, in order to preserve them in the form of microfilms, the National Intelligence Agency photographed the documents written after the investigation of three individuals who served as the commanding officers of the First Company at the time of the incident, and the list for such documents exists’ (later on 6 April 2021, only the portion of the microfilms recording the names and places of origin of the investigated individuals from such list was submitted by the Director of National Intelligence Agency). Through this process, the existence of official records, which corroborate the media interview and statements from the members of the involved units, was finally confirmed.
(8) If Plaintiff, without the aforementioned evidence and official records, filed a vague suit for state liability for compensation against Defendant, Plaintiff would not have had a practical suit since there would have been little possibility of such a claim being granted.
B) In light of the above, while the ROK government or the military authorities might not have directly hindered the exercise of the right to claim state liability for compensation, Plaintiff objectively had factors hindering her from exercising the right to claim compensation for damage in this case until around the time Plaintiff filed this suit.
4) Whether Defendant’s argument that the statute of limitations has lapsed amounts to an abuse of rights
A) On the other hand, the obligor exercising the right of objection based on the lapse of the statute of limitations is also governed by the fundamental principles of the Korean Civil Act, the principle of good faith, and the prohibition of abuse of rights. In the following cases, the obligor arguing the lapse of the statute of limitations is against the principle of good faith and amounts to abuse of rights and, thus, cannot be allowed: the obligor rendered it impossible or significantly difficult for the obligee to exercise the right or to suspend the statute of limitations; the obligor led the obligee to believe that such measure is unnecessary; objectively, there existed factors hindering the obligee from exercising the right; the obligor led the obligee to believe that the obligor would not claim the statute of limitations after it has lapsed; the need to protect the right of the obligee is significant, and there exists circumstances such as the obligor has performed the obligation for another obligee under the same conditions, etc., and thus, allowing the obligor to refuse to perform would be significantly unjust or unfair; etc. special circumstances exist (2011Da36091, Supreme Court of Korea, Decision of 13 October 2011).
B) In light of the aforementioned circumstances and reasons discussed in 3) A) (1) through (8), even if the statute of limitations for Plaintiff’s right to claim compensation for damage had lapsed after the 5-year period, Defendant’s refusal to perform the obligation to compensate for damage caused by the tort against Plaintiff based on the lapse of statute of limitations would be significantly unjust. We do not allow such refusal because it is against the principle of good faith and the abuse of rights.
E. The scope of compensation for damage
1) Relevant law
When a court calculates the amount of compensation, it needs to balance the circumstances of the victim, such as the victim’s age, occupation, social status, wealth and living conditions, the degree of pain caused by the damage, the negligence of the victim, etc. against the circumstances of the perpetrator, the degree of willfulness and negligence, the motivation behind and causes of the act, wealth, social status, age, the attitude after the incident, etc. This is in accordance with the equitable distribution of liability as the principle of compensation (2007Da77149, Supreme Court of Korea, Decision of 24 December 2009).
There are cases where a long period of time had passed between when the tort was committed and when the hearing is closed, and when the hearing is closed there is a significant change in certain factors compared to when the tort was committed, factors which must be considered in the calculation of the amount of compensation such as currency value, etc. In such cases, as an exception, it should be considered that damages for delay of the obligation to pay compensation runs from the base period of calculating the amount of the compensation, the date in which the hearing at a trial court proceeding is closed. In these exceptional cases where the damages for delay of the obligation to pay compensation for the tort are considered to run from the date in which the hearing at a trial court proceeding is closed, the court needs to consider the reasons why the payment was delayed and calculate the principal of the compensation based on the date in which the hearing at a trial court proceeding is closed, rather than to add the damages for delay from when the tort is committed as usually required (2009Da103950, Supreme Court of Korea, Decision of 13 January 2011; 2018Da224408, Supreme Court of Korea, Decision of 29 September 2022, etc.)
2) Finding
Considering the unlawfulness and degree of the human rights violation in this case, Plaintiff’s age, the details and degree of damage and pain Plaintiff experienced caused by the tort, the amount of compensation calculated in similar cases, the fact that more than 50 years have passed from the occurrence of the tort, and thus, price and currency value have significantly changed which requires the increase of the compensation, etc., the amount of compensation is calculated as KRW 40,000,000.
Additionally, this case should be considered one of the exceptional cases in which damages for delay of the obligation to pay compensation runs from the base period of calculating the amount of the compensation, the date in which the hearing at a trial court proceeding is closed.
3) Sub-conclusion
Defendant is liable to pay Plaintiff the amount of KRW 30,000,100, which was sought by Plaintiff, and the damages for delay which is calculated with the annual interest of 5% under the Civil Act from 15 November 2022, the date the hearing at a trial court proceeding is closed, to 7 February 2022 [sic] , the date of this judgment until which Defendant can reasonably protest the existence of the obligation or its scope, and with the annual interest of 12% under the Act On Special Cases Concerning Expedition Of Legal Proceedings from the day after the date of judgment until the date in which the payment is completed.
5. Conclusion
Plaintiff’s claims within the aforementioned scope are accepted for good cause, and the rest is dismissed without good cause, and the judgment is rendered as per the Ruling.
Judge PARK, Jinsoo
[1] [Translator’s Note] Also known as the First Indochina War in some cultures.
[2] [Translator’s Note] Also known as the Second Indochina War in some cultures.
[3] [Translator’s Note] Later changed to the 100th Logistical Command.
[4] [Translator’s Note] Also known as the Vietnam People's Armed Forces.
[5] [Translator’s Note] Also known as the Republic of Vietnam Military Forces.
[6] [Translator’s Note] ROK Ministry of Defense, Institute for Military History (국방부 군사편찬연구소 (구 전사편찬위원회)), 파월한국군전사 (1978-1985). A series of historical records regarding the ROK participating in the Vietnam War.
[7] [Translator’s Note] p.75 of the Evidence No.10-2, which corresponds to p.330 of the Korean Soldiers Deployed to Vietnam, Vol. 4.
[8] [Translator’s Note] Specifically referred to as ‘Phong Nhi’ and ‘Phong Nhut’ here instead of ‘Phong Nhị’ and ‘Phong Nhất’ to reflect how these names were spelled in <Korean Soldiers Deployed to Vietnam> and its attached map.
[9] [Translator’s Note] The original passage reads as follows (in Korean and Hanja): “Suoi Co Ca(江) 西岸인 마을 Phong Nhut (2)의 유력한 지형을 따라 南北으로 兵力을 散開시켜 제2, 제7중대와 같이 協調 된 지역에 대한 차단임무를 수행하였다.”
[10] [Note] The North Vietnamese equivalent of the Strategic Hamlet Program (ấp chiến lược).
[Annex]
1. Vietnam Civil Code Article 598
(English / Korean translation)
Article 598. Compensation for damage caused by law enforcers
The State must compensate for damage caused by law enforcers as prescribed in the Law on compensation liability of the State.
국가는 국가배상책임법에 규정된 대로 공무집행자(법집행자)에 의하여 발생한 손해를 배상하여야 한다.
(Original Text)
Điều 598. Bồi thường thiệt hại do người thi hành công vụ gây ra
Nhà nước có trách nhiệm bồi thường thiệt hại do hành vi trái pháp luật của người thi hành công vụ gây ra theo quy định của Luật trách nhiệm bồi thường của Nhà nước.
2. Vietnam Law on State Compensation Liability Articles 2 and 3
(English / Korean Translation)
Article 2. Entities eligible for compensation
Eligible for compensation are individuals and organizations suffering from material damage or having mental suffering caused by official duty performers within the scope of state compensation liability prescribed in this Law.
본 법에 규정된 주 보상 책임 범위 내에서 공무 수행자에 의해 물질적 피해를 입거나 정신적 고통을 겪고 있는 개인 및 조직은 보상을 받는다.
Article 3. Interpretation of terms
In this Law, the terms and expressions below are construed as follows:
1. Damage sufferer means an individual or organization that suffers from a material damage or has a mental suffering caused by an official duty performer within the scope of state compensation liability prescribed in this Law.
2. Official duty performer means a person who is elected, approved, recruited or appointed in accordance with the law on cadres and civil servants and relevant laws to a position in a state agency to perform administrative management or conduct legal proceedings or judgment execution, or a person who is assigned by a competent state agency to perform a task related to administrative management, legal proceedings or judgment execution.
1. 손해를 입은 자란 이 법에 규정 된 국가 배상책임의 범위 내에서 공무 수행자에 의해 물질적 손해를 입거나 정신적 고통을 겪은 개인 또는 조직을 의미한다.
2. 공무 수행자란 간부 및 공무원에 관한 법률 및 관련법에 따라 국가 기관에서 행정 관리를 수행하거나 법적 절차 또는 판결 집행을 수행하기 위해 선출, 승인, 채용 또는 임명되는 사람 혹은 관할 국가 기관에서 행정 관리, 법적 절차 또는 판결 집행과 관련된 작업을 수행하도록 지정된 사람을 의미한다.
(Original Text)
Điều 2. Đốitượngđượcbồithường
Cá nhân, tổ chức bị thiệt hại về vật chất, thiệt hại về tinh thần do người thi hành công vụ gây ra thuộc phạm vi trách nhiệm bồi thường của Nhà nước được quy định tại Luật này.
Điều 3. Giảithíchtừngữ
Trong Luật này, các từ ngữ dưới đây được hiểu như sau:
1. Người bị thiệt hại là cá nhân, tổ chức bị thiệt hại về vật chất, thiệt hại về tinh thần do người thi hành công vụ gây ra thuộc phạm vi trách nhiệm bồi thường của Nhà nước được quy định tại Luật này.
2. Người thi hành công vụ là người được bầu cử, phê chuẩn, tuyển dụng hoặc bổ nhiệm theo quy định của pháp luật về cán bộ, công chức và pháp luật có liên quan vào một vị trí trong cơ quan nhà nước để thực hiện nhiệm vụ quản lý hành chính, tố tụng hoặc thi hành án hoặc người khác được cơ quan nhà nước có thẩm quyền giao thực hiện nhiệm vụ có liên quan đến hoạt động quản lý hành chính, tố tụng hoặc thi hành án
3. Constitution of Vietnam Articles 30 and 48
(영문본/ 국문본)
Article 30.
1. Every one has the right to lodge complaints and denunciations with the competent State bodies, organizations, and individuals in against the illegal acts of State organs, organizations, and individuals.
2. The competent State bodies, organizations, and individuals must receive and handle the complaints and denunciations. The person who has suffered loss and injury shall be entitled to damages for any material harm suffered and his reputation rehabilitated.
1. 모든 사람은 기관, 단체, 개인의 법률 위반에 관하여 관할 기관, 단체, 개인에게 이의신청, 고소할 권리를 가진다.
2. 관할 기관, 단체, 개인은 이의 신청, 고소를 접수, 해결하여야 한다. 손해를 받은 사람은 법률 규정에 따라 물질, 정신 및 명예회복에 관하여 배상을 받을 권리를 가진다.
Article 48.
Foreigners residing in Vietnam must obey the Constitution and law of Vietnam; they shall receive State protection with regard to their lives, possessions and legitimate interests in accordance with the provisions of Vietnamese law.
베트남에 거주하는 외국인은 베트남 헌법과 법률을 준수하여야 하며, 베트남 법률에 따라 생명, 재산 및 정당한 권리, 이익의 보호를 받는다.
(Original Text)
Điều 30
1. Mọi người có quyền khiếu nại, tố cáo với cơ quan, tổ chức, cá nhân có thẩm quyền về những việc làm trái pháp luật của cơ quan, tổ chức, cá nhân. 2. Cơ quan, tổ chức, cá nhân có thẩm quyền phải tiếp nhận, giải quyết khiếu nại, tố cáo. Người bị thiệt hại có quyền được bồi thường về vật chất, tinh thần và phục hồi danh dự theo quy định của pháp luật.
Điều 48
Người nước ngoài cư trú ở Việt Nam phải tuân theo Hiến pháp và pháp luật Việt Nam; được bảo hộ tính mạng, tài sản và các quyền, lợi ích chính đáng theo pháp luật Việt Nam.
4. Vietnam Civil Procedures Code Article 465
(English / Korean Translation)
Article 465. Procedural rights and obligations of foreigners, foreign agencies and organizations and branches or representatives offices of foreign agencies and organizations and international Organizations or their representatives in Vietnam, States of foreign countries
1. Foreigners, foreign agencies and organizations, international organizations, representative offices of international organizations in Vietnam may initiate lawsuits to Vietnamese Courts to request the protection of their legitimate rights and interests when being infringed upon or when being in dispute.
1. 베트남의 외국인, 외국 기관 및 단체, 국제기구, 국제기구 대표사무소는 자신의 합법적 권리와 이익의 보호를 요청하기 위하여, 그 권리와 이익이 침해당하거나 분쟁 중일 때 베트남 법원에 소송을 제기할 수 있습니다.
2. When participating in civil procedures, foreigners, foreign agencies and organizations and branches or representatives offices in Vietnam of foreign agencies and foreign organizations and international organizations or their representatives in Vietnam and States of foreign countries shall have rights and obligations to conduct procedures like Vietnamese citizens, agencies and organizations.
2. 외국인, 외국 기관, 외국 단체, 외국 혹은 국제기관의 베트남에 있는 대표 사무소나 지점 등이 민사 소송 절차에 참여할 때, 민사 소송 절차에 참여하기 위해 베트남 시민, 기관, 단체 등과 동일한 권리와 의무를 가집니다.
(Original Text)
Điều 465. Quyền, nghĩa vụ tố tụng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài và tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam, Nhà nước nước ngoài
1. Người nước ngoài, cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu bảo vệ quyền và lợi ích hợp pháp của mình khi bị xâm phạm hoặc có tranh chấp. Chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài theo ủy quyền có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu bảo vệ quyền và lợi ích hợp pháp của cơ quan, tổ chức nước ngoài ủy quyền bị xâm phạm hoặc có tranh chấp.
2. Khi tham gia tố tụng dân sự, người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam, Nhà nước nước ngoài có quyền, nghĩa vụ tố tụng như công dân, cơ quan, tổ chức Việt Nam.
3. Nhà nước Việt Nam có thể áp dụng nguyên tắc có đi có lại để hạn chế quyền tố tụng dân sự tương ứng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện tại Việt Nam của cơ quan, tổ chức nước ngoài mà Tòa án của nước đó đã hạn chế quyền tố tụng dân sự đối với công dân, cơ quan, tổ chức Việt Nam, chi nhánh, văn phòng đại diện tại nước ngoài của cơ quan, tổ chức Việt Nam.
5. Vietnam Law on Administrative Procedures Article 299
(English / Korean Translation)
Article 299. Procedural rights and obligations of foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam
1. Foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam may institute lawsuits at Vietnamese courts to request review of administrative decisions or administrative acts when having grounds to believe that such decisions or acts are illegal and infringe upon their lawful rights and interests.
1. 외국인, 외국 기관, 외국 단체, 외국 혹은 국제기관의 베트남에 있는 대표 사무소나 지점 등은 (베트남 정부의) 행정적 결정이나 행위가 위법이고, 이것이 그들의 합법적 권리와 이익을 침해한다고 믿을 근거가 있을 때 해당 행정적 결정이나 행위에 대한 검토를 요청하기 위해 베트남 법원에 소송을 제기할 수 있다.
2. When participating in administrative procedures, foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam have procedural rights and obligations like Vietnamese citizens, agencies and organizations.
2. 행정절차에 참여할 때, 베트남의 외국인, 외국 기관, 외국 단체, 외국 혹은 국제 기관의 베트남에 있는 대표 사무소나 지점 등은 베트남 시민, 기관, 단체와 같은 절차상 권리와 의무를 갖는다.
3. The Vietnamese State may apply the principle of reciprocity to restrict relevant administrative procedural rights of foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam which the courts of their countries have restricted toward Vietnamese citizens, agencies and organizations, and branches and representative offices of overseas Vietnamese agencies and organizations.
3. 베트남은 상호주의 원칙을 적용하여 베트남 시민, 기관 및 조직, 해외 베트남 기관 및 조직의 지점 및 대표의 (행정 소송 권리를) 제한하는 국가의 외국인, 외국 기관 및 단체, 외국기관 및 단체의 지사 또는 대표 사무소, 베트남의 국제기구 또는 대표 기관의 관련 행정 소송 권리를 제한할 수 있습니다.
(Original Text)
Điều 299. Quyền, nghĩa vụ tố tụng của cơ quan, tổ chức, cá nhân nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam
1. Người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền khởi kiện đến Tòa án Việt Nam để yêu cầu xem xét lại quyết định hành chính, hành vi hành chính khi có căn cứ cho rằng quyết định, hành vi đó là trái pháp luật và xâm phạm đến quyền và lợi ích hợp pháp của mình.
2. Khi tham gia tố tụng hành chính, cơ quan, tổ chức, cá nhân nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, tổ chức quốc tế, cơ quan đại diện của tổ chức quốc tế tại Việt Nam có quyền, nghĩa vụ tố tụng như công dân, cơ quan, tổ chức Việt Nam.
3. Nhà nước Việt Nam có thể áp dụng nguyên tắc có đi có lại để hạn chế quyền tố tụng hành chính tương ứng của người nước ngoài, cơ quan, tổ chức nước ngoài, chi nhánh, văn phòng đại diện của cơ quan, tổ chức nước ngoài, cơ quan đại diện của tổ chức quốc tế tại Việt Nam mà Tòa án của nước đó đã hạn chế quyền tố tụng hành chính đối với công dân Việt Nam, cơ quan, tổ chức Việt Nam, chi nhánh, văn phòng đại diện của cơ quan, tổ chức Việt Nam tại nước ngoài.
[Annex 2]
<Korean Soldiers Deployed to Vietnam> Attached Map: a sketch map of Operation Goeryong No.1 progress, concerning the operation of the First Company