State Compensation Lawsuit

For state liability to be recognized, the following requirements must be met.

When a soldier, military civilian employee, police official, or reserve forces member dies or is injured while performing duties such as combat or training, neither the person nor the bereaved family may separately claim damages under the State Compensation Act or the Civil Act if they are eligible to receive disaster compensation, a survivor's pension, a disability pension, or similar benefits under other statutes.

In other words, where compensation is already available under another statute, a state compensation claim is restricted so that it cannot be made on a duplicative basis.

However, where a soldier or police official has died in action or in the line of duty, consolation money may be claimed for the mental suffering experienced by the bereaved family.

This means that a claim for the bereaved family's own mental damage, as opposed to compensation for physical harm, is exceptionally permitted.

For a foreign national to claim state compensation, this is possible only where a "mutual guarantee" exists between that person's home country and Korea.

Under the principle of reciprocity, Korea recognizes a foreign national's right to state compensation only where that foreign national's home country guarantees the same right to Korean nationals.

When a person dies due to an unlawful official act by a public official, compensation is paid to the bereaved family based on the following items.

▶Compensation for the Bereaved Family

-This is calculated by multiplying the monthly salary, actual income, or average wage at the time of death by the period during which the victim could have worked (the employable period).
-It is assessed by considering both subjective factors, such as the victim's age, occupation, and health condition, and social factors, such as average life expectancy and the employment environment.

▶Funeral Expenses

-These are calculated based on 100 days of the average wage (generally the statistical wage for men).

▶Consolation Money

-Under the standards set forth in the State Compensation Act, consolation money for mental distress is paid to the bereaved family.

Standards for Assessing Consolation Money in Cases of Death

▶Deduction of Living Expenses

-Because not all of the deceased's income is regarded as a loss to the bereaved family, the amount that would have been used for living expenses is deducted from the compensation.
-If there are no dependents, 35% of the income is deducted, and if there are dependents, 30% is deducted.

▶Deduction of Interim Interest (Hoffmann Method)

-Because future losses are paid as a lump sum at the present time, interim interest based on the statutory interest rate is deducted.

When a victim is injured by an unlawful act of a public official, compensation is calculated based on the following items.

▶Medical Care Expenses

-The actual treatment costs, including hospital fees, medication costs, and other expenses necessary for treatment.

▶Compensation for Lost Income During Recovery

-The income loss incurred during the period the victim was unable to work due to treatment. This is calculated based on the monthly salary, income, or average wage.

▶Disability Compensation

-Where a physical disability remains even after treatment, the amount of damage is assessed according to the rate of loss of earning capacity.
-This follows the disability grades and comprehensive assessment method set forth in the State Compensation Act.

▶Nursing Care Expenses

-If a physical disability remains and daily life is difficult without the assistance of another person, nursing care expenses are paid.
-These are calculated based on the average wage of a female day laborer and are applied up to the period of life expectancy.

▶Consolation Money

-Simple injury: consolation money of approximately 20,000 won per day during the treatment period is paid.
-Mental harm (for example, defamation): where the damage is proven, consolation money is recognized up to a maximum of 10 million won.

▶Where a Benefit Is Obtained at the Same Time

-Where the victim obtains a benefit such as insurance proceeds or compensation as a result of the accident, that amount is deducted from the compensation.

▶Deduction of Living Expenses

-As mentioned earlier, in the case of compensation for the bereaved family, living expenses are deducted at a certain rate (30 to 35%).

▶Deduction of Interim Interest

-For long-term losses, such as disability compensation and compensation for the bereaved family, the amount is calculated as a discounted present value reflecting the statutory interest rate.

▶General Limitation Rules

-Three years from the date the victim or the victim's legal representative became aware of the damage and the perpetrator.
-The right to claim is extinguished after five years from the date the unlawful act occurred.

▶Exception for Minors Who Are Victims of Sexual Violations

-For a minor who has suffered harm from sexual violence, sexual harassment, or similar acts, the period of prescription does not run until the minor reaches adulthood.
-The limitation period (three years or five years) begins after the person reaches adulthood.

■ A Judgment That the State Must Also Compensate Victims Who Did Not File for Fact-Finding

On June 18, 2024, the 14th Civil Division of the Seoul Central District Court held, in a claim for damages filed against the State and Gyeonggi Province by eight victims who had been confined at S Institution and suffered human rights violations, that the State bears a responsibility to compensate even those victims who did not file an application for fact-finding with the Truth and Reconciliation Commission.

The court recognized that the victims had in fact been confined at Seongam Institution and that, in that process, their physical freedom and their dignity as human beings had been violated, and it ordered compensation ranging from 35 million won to 500 million won for each victim, based on consolation money of approximately 80 million won per year of confinement.

The defendants, the State and Gyeonggi Province, argued that, because the victims had not applied for fact-finding, proof of the harm was insufficient, but the court recognized the harm based on official records such as the S Institution registry, the fact that Gyeonggi Province had paid consolation payments, and the contents of the Truth and Reconciliation Commission's fact-finding decision.

The court also held that the starting point for the statute of limitations on the right to claim damages was the date of the fact-finding decision (October 18, 2022), and it found that a lawsuit filed within three years of the decision date was lawful.

A state compensation lawsuit is an important right that ensures citizens can be compensated for harm suffered through the exercise of public authority.

However, proving the causation between the unlawful act and the damage in a claim against the State or similar entities is not an easy matter.

Daeryun Law Firm provides comprehensive support across the entire course of a state compensation lawsuit, including assessing the amount of damages by ascertaining the circumstances of the harm and the scale of the loss, identifying the defendant and drafting the complaint, and gathering evidence and establishing a strategy for proof.

In addition, through close collaboration with civil litigation attorneys, the firm systematically prepares the overall litigation and provides tailored legal support based on sufficient communication with the client.

Because filing an application for compensation with the State Compensation Deliberation Council before litigation may allow for a more prompt resolution, we recommend that you accurately analyze the matter together with an experienced attorney from the early stages of the case and establish a strategy in the most favorable direction.