[대여금등][집49(1)민,461;공2001.8.1.(135),1586]
Whether the obligor may be deemed as waiver of prescription benefit if the obligor did not raise any objection when executing the right to collateral security with the obligation, the extinctive prescription of which has been completed, as the secured obligation (affirmative)
If an obligor partly repaid an obligation after the completion of the extinctive prescription, barring any dispute, it shall be deemed that the obligor impliedly approved the entire obligation, barring any exceptional circumstance, such as where the obligor was unaware of the progress of the auction procedure, and where the obligor did not raise any objection against the obligor’s real estate at the time when the right to collateral security with the obligation for which the extinctive prescription has expired was implemented, and the obligor did not raise any objection until the obligor was appropriated for partly repaying the obligation, it shall be deemed that the obligor renounced the benefit of prescription by implicitly approving the obligation with the knowledge of the completion of the extinctive prescription, unless there is any special circumstance,
Article 184(1) of the Civil Act
Supreme Court Decision 92Da947 delivered on April 14, 1992 (Gong1992, 1595), Supreme Court Decision 92Da4796 delivered on May 22, 1992 (Gong1992, 1980), Supreme Court Decision 93Da14936 delivered on October 26, 1993 (Gong193Ha, 3177), Supreme Court Decision 95Da39854 delivered on January 23, 1996 (Gong196, 667)
[Defendant-Appellant] Korea Mutual Savings and Finance Company (Attorney Lee Young-chul, Counsel for defendant)
Defendant (Law Firm Masung, Attorney Lee Du-hwan, Counsel for defendant-appellant)
Seoul District Court Decision 2000Na36254 Delivered on December 6, 2000
The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.
1. The court below held on November 27, 1986 that the head of Korea-Japan Mutual Savings and Finance Company agreed to receive installment payments for five months from December 27, 1986 to April 27, 1987 when lending KRW 100 million to Nonparty 1. The defendant jointly and severally guaranteed the obligation to return the loan, and at the same time, completed the registration of creation of a collateral for the defendant's share (hereinafter referred to as the "real estate in this case") in the fourth parcel of real estate located in Busan Jung-gu, Busan, with the maximum debt amount of KRW 160,000,000,000 from the above Mutual Savings and Finance Company, but the defendant acquired the right to collateral payment against Nonparty 1 on July 13, 198, and that the defendant's last repayment of the obligation by commercial activities was not due to the expiration of the extinctive prescription period from October 19, 192.
2. The court below rejected the Plaintiff’s assertion that the Defendant renounced the statute of limitations interest on the ground that it cannot be readily concluded that the Plaintiff’s exercise of the right to collateral security upon the completion of the extinctive prescription procedure and the Defendant did not raise any objection thereto even though it did not object to the said procedure.
However, if an obligor partly pays an obligation after the completion of the extinctive prescription, it shall be deemed that the entire obligation was impliedly approved unless there is any dispute over the amount thereof (see, e.g., Supreme Court Decisions 93Da14936, Oct. 26, 1993; 95Da39854, Jan. 23, 1996). In this case, it is presumed that the obligor renounced its benefit with the knowledge of the completion of prescription (see, e.g., Supreme Court Decision 92Da4796, May 22, 1992). Thus, if the right to collateral security, the obligor’s real estate owned by the obligor upon the completion of the extinctive prescription, was sold, and the proceeds therefrom were distributed, and the obligor did not raise any objection, barring any special circumstances, such as the obligor was unaware of the progress of the auction procedure, the obligor shall be deemed to have renounced its benefit of prescription by impliedly approving the obligor’s obligation with the knowledge of the completion of prescription.
In this case, upon the Plaintiff’s application, the procedure of voluntary auction was initiated on March 7, 1996 with respect to the instant real estate, and on the date of distribution on May 17, 1999, the Plaintiff received dividends of KRW 147,664,070 out of the successful bid price and appropriated for the repayment of the claim against Nonparty 1. Thus, if the Defendant did not raise any objection despite being aware of the progress of the auction procedure, it would have renounced the benefit of prescription by implied approval of the obligation.
Nevertheless, the court below rejected the Plaintiff’s assertion on waiver of the statute of limitations on the ground that the Defendant’s objection to the auction procedure cannot be deemed to have waived the statute of limitations on the sole ground that the Defendant did not raise any objection thereto. In so doing, the court below erred by misapprehending the legal principles on the approval of the obligation after the completion of the statute of limitations and the waiver of the statute of limitations interest, thereby failing to exhaust all necessary
3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.
Justices Zwon (Presiding Justice)