Equitable tolling

Equitable tolling (형평/衡平에 따른 제척의 유보/除斥留保) refers to the case where, if a claimer is deemed equitably to have special circumstances enough to exercise his/her own right, even though he/she is constrained from filing a lawsuit because of a statute of limitations, the court may start the proceedings on such claims.

Equitable tolling is a principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:
 * Timely notice to the adverse party is given within applicable statute of limitations of filing first claim
 * Lack of prejudice to the defendant
 * Reasonable good faith conduct on part of the plaintiff.

Key words
equitable tolling, statute of limitations, claim, court, remedies

Legal Aspects
Equitable tolling is most often asserted as counter to an argument that the relief sought is unavailable because of the statute of limitations. As is true of equitable doctrines generally, the felt necessity animating equitable tolling is the idea that fundamental justice should not be defeated by hyper-technicality.

Equitable tolling is a judge-made doctrine which operates independently of the literal wording of the statute to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness. It applies in carefully considered situations to prevent the unjust technical forfeiture of causes of actions where the other party would suffer no prejudice.

Korean Case
On February 3, 1991, a soldier committed a suicide by hangling himself on a pine tree near his military barrack. It was ten days after he was transferred to the company upon completing the training course. He suffered from ceaseless violence, harsh treatment, curse and swears of seniors in the military barrack. The family of the deceased filed a lawsuit for damages against the state on December 10, 2009, which passed the five-year limitation period from the death of the victim. The Supreme Court held:
 * 자살사고가 선임병들의 심한 폭행ㆍ가혹행위 및 이에 대하여 적절한 조치를 취하지 않은 부대관계자들의 관리ㆍ감독 소홀 등의 불법행위로 인하여 발생한 것이라는 점을 군의문사진상규명위원회의 2009.3.16.자 진상규명결정이 내려짐으로써 비로소 알았거나 알 수 있었다고 할 것이므로, 2009.3.16. 전까지의 기간 동안에는 유족들이 국가를 상대로 손해배상청구를 할 수 없는 객관적 장애가 있었다고 보아야 하고 ...[Omitted]... 국가가 소멸시효 완성의 항변을 한 사안에서, 군의 특성상 군 외부에 있는 민간인이 군 내부에서 이루어진 불법행위에 관하여 그 존재 사실을 인식하는 것은 원칙적으로 불가능에 가까운 데다가...[Omitted]... 국가가 후진적 형태의 군대 내 사고의 발생을 막지 못하고서도 망인이나 유족에 대하여 아무런 보상도 하지 않은 채 자신의 책임으로 빚어진 권리행사의 장애 상태 때문에 소멸시효 기간이 경과하였다는 점을 이유로 들어 망인이나 유족에 대한 손해배상책임을 면하는 결과를 인정한다면 이는 현저히 정의와 공평의 관념에 반하는 것이므로, 국가의 소멸시효 완성 항변은 신의성실의 원칙에 반하는 권리남용으로서 허용될 수 없다.

Some 20 years have passed since the mysterious suicidal case, and then the Truth Commission on Suspicious Deaths in the Military (군의문사진상규명위원회) decrared the truth. The Supreme Court ruling that, when the Commission declared the truth, the illegality of the military was recognized or became recognizable is poor indeed from the standpoint of victim's survivors, and rarely reasonable from the general point of view. Furthermore, a search for new reasoning of equitable tolling is necessary because equitable remedies of compensation should be granted to the case without such declaration of truth.

Statutes of limitation (시효/時效) and the period of exclusion (제척기간/除斥期間) are in the realim of general law beyond the civil law, are the starting point of juristic relationship. The benefit of limitation may be invoked by the interested party and applied to the court decision, while the period of exclusion is automatically effective and the court is requied to observe it. However, it is difficut to tell the period of exclusion from other limitations. It is basically up to the legislators what kind of legal effect shall be given to the elapse of time.

In Korea, the statutes of limitations are scattered in various laws. Generally speaking, if a provision contains the wording "extinctive/acquisitive prescription", it cannot be a statute of limitations. Some scholars argue that the legislative intent or the nature of right should be considered to tell limitations from prescription.

U.S. Cases
The equitable tolling issue may be examined in light of the court's meandering equitable tolling jurisprudence and its functions in the context of legal structure in the United States.

With respect to the theory of equitable tolling, the courts have differed in forming equitable tolling standard. In the United States, the source of "Congress's power authorizing the legislation" and the "Dialogue between the Courts and Congress related to Congressional Dominance" has been discussed. The courts retain their equitable power, in particular, on subject matters of ‘the statute of limitations’ in taxation, copyright, tort claims in context and equitable tolling.

Here are some leading cases on equitable tolling:
 * California Restaurant Management Systems v. The City of San Diego, 4th Appellate District (June 2011).
 * Rhines v. Weber, 544 U.S. 269 (2005) in relation to the Antiterrorism and Effective Death Penalty Act (AEDPA).
 * U.S. v. Brockamp, 519 U.S. 347 (1997).
 * Zipes v. Trans World Airlines, 455 U.S. 385 (1982).

The U.S. court’s equitable tolling jurisprudence tells a number of different stories.

On the one hand, one could argue that does not exist, because each equitable tolling problem is so specific to the statute and its setting. On the other hand, when the court confronts an equitable tolling issue, it relies on its past equitable tolling decisions.

Implications to Korea
Despites some problems, it is necessary to introduce U.S. equitable tolling doctrine when public interest demands revisions of a law, the judiciary must not circumvent that law to fit the needs of a specific case.

Rather, the legislature must recognize the validity of that particular need and recodify the laws accordingly with regard to the Free Trade Agreement disputes, and the enforcement of human rights, immigrations and alien cases in Korea.