[제3자이의][공1992.6.1.(921),1594]
A. Whether a notary public has res judicata effect on a notarial deed of a promissory note prepared by a joint law office in accordance with Article 4 of the Act on Special Cases concerning the Settlement of Civil Dispute Cases, in which the joint law office is in a simplified procedure (defluence by Act No. 3790, Sep. 14, 198
B. Whether a notarized promissory note is “a claim established by the same effect as a judgment” under Article 165(2) of the Civil Act and takes ten years extinctive prescription (negative)
A. A notarial deed of promissory notes prepared by a notary public pursuant to Article 4 of the Act on Special Cases concerning the Settlement of Civil Dispute Cases in which a joint law office is in a simple procedure in the former summary procedure (defluence by Act No. 3790, Sep. 14, 1985) has executory power as a title of debt, but there is
B. The Promissory Notes cannot be deemed as "bonds established by the same effect as the judgment" on the ground that they were notarized by the Promissory Notes, and this Promissory Notes cannot be deemed as having contracted the ten-year extinctive prescription of claims under Article 165(2) of the Civil Code.
A. Article 202 of the Civil Procedure Act; Article 4 of the Act on Special Cases concerning the Settlement of Civil and Private Dispute Cases in the former Summary Procedure (defluence by Act No. 3790, Sep. 14, 1985). Article 165(2) of the Civil Act; Article 70 of the Bills of Exchange and Promissory
Plaintiff
Defendant
Suwon District Court Decision 91Na3717 delivered on November 19, 1991
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
The additional appellate brief is not timely filed, so it shall be considered to the extent of supplement in case of supplemental appellate brief.
On the first ground for appeal
A notarial deed of promissory notes prepared by a notary public pursuant to Article 4 of the Act on Special Cases concerning the Settlement of Civil Dispute Cases in the Summary Procedure before the amendment of a joint law office is an executory title as a debt holder, but there is no res judicata such as a final and conclusive judgment.
Therefore, a promissory note cannot be deemed as a claim established by a promissory note having the same effect as the judgment, on the ground that it is notarized in a promissory note as such, and it cannot be said that this promissory note has taken the ten-year extinctive prescription as a claim under Article 165(2) of the Civil Act.
Therefore, the court below is just in holding that the Defendant’s claim against the Plaintiff, who is the issuer of the Promissory Notes of this case, has expired on August 15, 1985 after three years from August 15, 1982, which is the due date, and whether the underlying obligation is the price for the goods and its existence is not affected by the expiration of the extinctive prescription period for the Promissory Notes of this case. Therefore, there is no reason to issue this issue.
On the second ground for appeal
According to the records, the plaintiff stated the name of the lawsuit in this case as a lawsuit of demurrer by a third party. However, according to the purport of the claim and the cause of the claim, it is evident that the plaintiff's claim in this case is a lawsuit of objection.
Therefore, the decision of the court below on the lawsuit of this case as a lawsuit of demurrer is just, and there is no reason to argue on the premise that the lawsuit of this case is a lawsuit of demurrer by a third party.
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.
Justices Kim Jong-soo (Presiding Justice)