시효중단을 위한 재판상 청구확인
1. The payment order of the guaranteed debt case between the plaintiff and the defendant was finalized by the Seoul Central District Court 2009 tea79068.
1. In full view of the purport of the argument in Gap evidence No. 1, the plaintiff filed a payment order against the defendant with the Seoul Central District Court 2009Da79068, Aug. 4, 2009, stating that "the defendant shall pay to the plaintiff the amount calculated at the rate of 20% per annum from August 11, 2009 to the date of full payment," and the above payment order was served on the defendant on July 9, 2009 and confirmed on August 25, 2009, and the plaintiff filed the lawsuit in this case for the interruption of extinctive prescription of the above payment order.
2. Determination
A. In a case where a claim becomes final and conclusive by judgment, etc., a creditor of judgment on the cause of the claim may file a new form of litigation seeking confirmation only to confirm that there was a “judicial claim” for the interruption of extinctive prescription (see, e.g., Supreme Court en banc Decision 2015Da232316, Oct. 18, 2018). As such, the Plaintiff may seek confirmation on the existence of the instant lawsuit for the interruption of extinctive prescription based on the above payment order.
B. The defendant's assertion argues that since the lawsuit of this case was filed after the lapse of ten years from the time when the above payment order became final and conclusive, the claim based on the above payment order has already ceased to exist due to the completion of prescription.
As a subsequent suit for the interruption of extinctive prescription, a “new form of litigation seeking confirmation” is the core that the subject matter of a lawsuit differs from the subject matter of a lawsuit in the prior suit, namely, a measure to interrupt the prescription of a claim established by a judgment in a prior suit, in addition to a lawsuit seeking performance.
In other words, while the subject matter of a prior suit is the existence or absence of a specific claim under the substantive law, the subject matter of a new form of litigation is the substantive existence or absence of a claim and the scope of a claim is excluded, and the subject matter of a new form of litigation is the claim