Law Firm Young-soo (Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Government Law Firm Corporation (Attorneys Lee Jae-type et al., Counsel for the plaintiff-appellant)

The costs of appeal are assessed against the Plaintiff.

1. A. A. In a case where a lawsuit is filed by clarifying the purport that a judgment is sought only with respect to a part of one claim, the interruption of extinctive prescription by an action shall take effect only on that part, and the remainder does not occur (see Supreme Court Decision 74Da1557, Feb. 25, 1975, etc.). However, according to the progress of the lawsuit, only a part of the claim which is the subject of the claim in the complaint is claimed by the warden,

In a case where an extension of the claim amount in the future is indicated to the effect that the actual claim amount is expanded until the lawsuit in question is completed, it shall be interpreted that a judgment was sought on the whole claim from the time when the lawsuit in question was brought to the effect of interrupting prescription due to a judicial claim concerning the whole claim (see Supreme Court Decision 91Da43695 delivered on April 10, 192, etc.).

B. In a case where the complaint stated that only a part of the claims which are the subject of the claim should be expanded according to the progress of the lawsuit, but the amount of the claim is not actually expanded until the lawsuit is completed, in light of the progress of the lawsuit, it cannot be deemed that the judgment on the whole claim was sought. Therefore, the interruption of prescription due to a judicial claim does not take effect with respect to the remaining part.

However, in such a case, a creditor who, while filing a lawsuit, expressed the intent to expand the future claim amount, is generally deemed to have the intent to claim the remainder in the future. Thus, barring any other special circumstance, it shall be deemed that, while the lawsuit in question is in progress, the situation where the creditor expressed his/her intent to exercise his/her right to the remainder and exercises his/her right by peremptory notice continues to exist. The creditor may interrupt the extinctive prescription of the remainder by taking measures prescribed in Article 174 of the Civil Act within six months from the

On the other hand, the Supreme Court has revealed that with respect to the peremptory notice given through the court's action unlike the common peremptory notice, the situation where the person exercises his right by the peremptory notice during the pending lawsuit continues to exist, and it may interrupt extinctive prescription by taking measures under Article 174 of the Civil Act within six months from the time the lawsuit in question is terminated (see Supreme Court Decision 2009Da14340, Jul. 9, 2009, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff provided a residential building due to the public works executed by the Defendant, which became an apartment unit as part of the relocation measures, and paid in full the sales price by October 31, 2008.

B. On July 30, 2013, the Plaintiff filed the instant prior suit against the Defendant, asserting that the Defendant, a project implementer, was obligated to return unjust enrichment, because the cost of basic living facilities was included in the apartment sale price.

C. Under the title of "part of claim" in the complaint of the preceding suit of this case, "the plaintiff has a right to claim restitution of unjust enrichment," but the correct amount is later stated as follows: "I will receive data related to basic facilities from the defendant and first claim only for KRW 2,00,000, which is part of this case."

D. The Plaintiff did not expand the claim amount until the completion of the instant prior suit, and on October 12, 2016, the court rendered a judgment that “the Defendant paid KRW 2,00,000,000 to the Plaintiff and damages for delay.” The said judgment became final and conclusive on November 8, 2016.

E. On May 18, 2017, the Plaintiff filed the instant lawsuit, and filed a claim for the remainder 18,808,243 won, excluding the amount acknowledged in the instant prior lawsuit.

F. The Plaintiff’s right to claim restitution of unjust enrichment against the Defendant is five years of extinctive prescription with the Plaintiff’s right to claim restitution of unjust enrichment against a local government.

3. Examining the above facts in light of the legal principles as seen earlier, inasmuch as the Plaintiff stated that the amount of the claim should be extended in the complaint, etc., but the amount of the claim was not extended until the completion of the instant prior suit, it is reasonable to deem that the Plaintiff filed a judgment only on KRW 2,00,000, and damages for delay thereof. As such, the interruption of the extinctive prescription by filing the prior suit of this case is effective only on the above KRW 2,00,000,000, and damages for delay thereof, and the remaining parts are still being in progress while the prior suit of this case is pending. However, measures prescribed in Article 174 of the Civil Act, such as filing the instant lawsuit within six months from the completion of the instant prior suit, were taken.

As long as the interruption of extinctive prescription is not effective, the extinctive prescription has become complete.

4. Therefore, the lower court’s conclusion that the extinctive prescription for the remaining portion of the lawsuit not claimed in the prior suit of this case has expired is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interruption

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Justices Lee Ki-taik

Justices Park Jung-hwa