On August 23, 2022, the Seoul Central District Court ruled in case 2020 Gadan No. 5256869 (on file with author) that North Korea and its leader, Kim Jong-un — the defendants in the case — should each pay 20 million won (about US$14,700) to the plaintiffs. The plaintiffs were seven veterans of the Second Battle of Yeonpyeong, fought in 2002, and the wife of a master sergeant killed in the battle.
More tort lawsuits seeking damages have been filed against North Korea recently. The Court Administration Department of the Supreme Court has begun studying whether North Korea must be exempted from South Korea’s court jurisdiction on the grounds of sovereign immunity under international law. This recent judgement awarded damages for the plaintiffs.
Background to the Case
The Second Battle of Yeonpyeong was a military clash between South Korea and North Korea on the sea near the Northern Limit Line off South Korea’s Yeonpyeong Island on June 29, 2002. The battle began with a surprise attack by two North Korean naval patrol craft without warning shots. In the battle six were killed and 18 were wounded aboard the South Korean Navy’s fast attack craft Chamsuri 357.
Due to the discussions as to whether North Korea has state immunity, which internationally restricts the execution of national jurisdictions over other states, no South Korean courts have acknowledged North Korea’s capacity to be a party in tort cases. However, in July 2020, a district court ruled for the first time that North Korea was liable against two prisoners of the Korean War because it is not recognized as a country under the Constitution and laws of South Korea. (2016 Gadan No. 5235506, Seoul Central Dist. Ct., July 7, 2020 (on file with author).)
The Grounds for the Court’s Judgment
Under Article 3 of the South Korean Constitution, North Korea illegally occupies the northern part of the Korean Peninsula, which South Korea claims as its own territory. Also, according to past precedents, North Korea is considered an antigovernment organization that claims the title of a country and desires to overthrow the free and liberal democracy of South Korea. (2012 Hunba No. 95, S. Ct, Apr. 30, 2015.) Therefore, state immunity does not apply to North Korea. Because North Korea is considered an antigovernment organization, it is subject to South Korean court jurisdiction as a non-juristic person under Civil Act (Act No. 471), as amended by Act No. 17503, article 35, paragraph 1 and Civil Procedure Act (Act No. 6626), as amended by Act No. 14103, article 52.
Following the court’s decision of July 7, 2020, the plaintiffs filed a lawsuit on October 6, 2020, claiming damages of 20 million won per person for physical and mental suffering due to the tortious act committed by North Korea and its leader Kim.
Meanwhile, the plaintiffs in the 2016 Gadan No. 5235506 case filed a compulsory execution against a third party. The Foundation of Inter-Korea Cooperation has a fund to manage and collect copyright fees from South Korean media and publishers using North Korean works. However, on January 14, 2022, the Seoul Eastern District court overturned North Korea’s legal status as a non-juristic person that can receive money from the foundation, ruling that the fees deposited by the foundation are not from the North Korean government but owned by the copyright holder. Because the text of the decision is not available, it is not clear if the court mentioned the applicability of sovereign immunity in the case.
Service
Because the defendant Kim’s domicile could not be confirmed, the court made the service by public notice (Civil Procedure Act art. 194) following the July 2020 decision.
The Court’s Decision of August 23, 2022
The court ruled that the defendants should jointly pay the plaintiffs 20 million won each. The court accepted the plaintiffs’ claim that the defendants are liable as non-juristic persons. The court firmly established that North Korea is not a foreign country to which state immunity applies.
However, because there has never been any successful collection of monetary awards against North Korea, the plaintiffs must explore methods to collect the damages.
Prepared by Younkyung Eum, Law Library intern, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist
Law Library of Congress, December 22, 2022
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