[양수금][공2008상,580]
[1] In a case where the extinctive prescription is completed for the remainder after the part of the principal of monetary claim was partially repaid, the scope of interest or damages for delay on the completion of prescription
[2] The extinctive prescription period of damages for delay on the bank's loan claims (=5 years)
[3] Where the judgment of the court of first instance which partially accepted the plaintiff's claim, appeals against the part against the plaintiff only, and the defendant's winning portion becomes final and conclusive due to the defendant's failure to file an appeal or incidental appeal, whether the plaintiff has the interest in the appeal (negative)
[1] Interest or delay damages are subordinate rights arising at a certain rate in response thereto, on the premise of the existence of the principal which is the principal claim. Where part of the principal of one monetary claim is repaid and the extinctive prescription for the remainder of the principal is completed, due to the nature of monetary claim, which is a divisible claim, it can be distinguished from the part of the principal extinguished due to repayment and the part of the principal extinguished due to the completion of the extinctive prescription. In this case, interest or delay damages, which is a right subordinate to the principal, may also be divided into the part of the extinguished principal due to repayment and the part of the extinguished principal due to the expiration of prescription, and the interest or delay damages incurred prior to the expiration of the extinctive prescription, shall not be limited to the interest or delay damages incurred prior to
[2] Article 64 of the Commercial Act, which provides for the five-year extinctive prescription, applies to damages for delay after the payment period for a loan as a business act by a bank, as in the original claim.
[3] Where only the plaintiff filed an appeal against the judgment of the court of first instance which partially accepted the plaintiff's claim against the part against which the plaintiff lost, and the defendant did not file an appeal or incidental appeal, the part in favor of the plaintiff in the judgment of first instance is excluded from the subject of the judgment of the appellate court and becomes final and conclusive simultaneously with the judgment of the appellate court. If the plaintiff filed an appeal against the part in which
[1] Article 183 of the Civil Code / [2] Article 64 of the Commercial Code / [3] Article 422 of the Civil Procedure Act
[2] Supreme Court Decision 79Da1453 delivered on November 13, 1979 (Gong1980, 12344)
Korea Asset Management Corporation (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)
Defendant 1 and one other
Daejeon High Court Decision 2005Na5155 Decided December 15, 2005
The part of the lower judgment against the Plaintiff is reversed, and the part against the Plaintiff falling under the same part of the first instance judgment against the Plaintiff is revoked. The Defendants jointly and severally pay KRW 9,007,771 to the Plaintiff. The remainder of the Plaintiff’s appeal is dismissed. The total cost of the lawsuit is nine minutes, and the remainder is borne by the Plaintiff, and the remainder is borne by the Defendants.
The grounds of appeal are examined.
1. The portion claimed for delay compensation from October 27, 1999 to November 2, 1999; from October 29, 200 to December 29, 200 to December 29, 200 to the principal repaid on December 28, 200; and from October 27, 2001 to December 28, 2001 to the principal repaid on December 28, 2001, each of the claims for delay compensation from October 27, 199 to October 26, 201 to the principal repaid on December 28, 2001
A. Interest or damages for delay is a subordinate right created at a certain rate in response thereto, on the premise of the existence of the principal, which is the principal claim. In case where part of the principal of a monetary claim is extinguished upon repayment and the extinctive prescription for the remaining principal is completed, due to the nature of a monetary claim, which is a divisible claim, it is possible to distinguish the principal from the part extinguished due to repayment and the part extinguished due to the completion of the extinctive prescription. In this case, interest or damages for delay, which is a right subordinate to the principal, may also be divided into the part extinguished due to repayment and the part extinguished due to the completion of prescription. Therefore, it is reasonable to view that the extinctive prescription of this case does not extend to the interest or damages for delay incurred prior to the expiration of the extinctive prescription for the interest or damages for delay
On the other hand, Article 64 of the Commercial Act, which provides for the extinctive prescription of five years applicable to claims arising out of commercial activities, as in the case of an original claim, shall apply to damages for delay after a bank becomes due to a loan as a business act (see Supreme Court Decision 79Da1453 delivered on November 13, 1979).
B. According to the reasoning of the judgment below, the court below accepted the above loan 2.3 of 2.2 of 1997 and the above loan 2 of 3.1 of 2 of 20, 1997 and the above loan 2 of 10.3 of 2 of 20, 300 per annum and 15.5 of 30 million won per annum and 26.4 of 197 were extended on September 26, 1997. The above loan 2 of 201 to 3.3 of 20, 196 and the above loan 1 of 20.3 of 2 of 196 and the above loan 1 of 2 of 3.3 of 20, 196 and the above loan 2 of 3.3 of 2 of 196, 198 were paid to the above bank, 19, 200 won per annum 29, 199.
C. However, the above determination by the court below is not acceptable.
According to the above legal principles, the above loan claims were completed after the lapse of September 26, 2002, which is five years from the due date. The validity of the above statute of limitations shall not extend to the principal amount already extinguished due to repayment prior to the expiration of the statute of limitations, i.e., the principal amount paid on November 2, 199, 14, 912, 934 won, the principal amount repaid on December 29, 200, 14, 912, 912, 934 won, the principal amount repaid on December 28, 2001, and the interest or delay damages incurred prior to the repayment from the principal amount repaid on December 28, 201. Accordingly, the statute of limitations shall be calculated separately from the due date of each claim for interest or delay damages incurred prior to the expiration of the statute of limitations period from October 27, 2004.
Nevertheless, the judgment of the court below which made a different judgment is erroneous in the misapprehension of legal principles as to the validity of extinctive prescription, thereby affecting the conclusion of the judgment. Therefore, the ground of appeal on this point is with merit
2. The portion of the claim for damages for delay from October 27, 2001 to December 28, 2001 for the principal repaid on December 28, 2001
In a case where only the plaintiff filed an appeal against the part against which the plaintiff partly accepted the plaintiff's claim, and the defendant did not file an appeal or incidental appeal, the part in favor of the plaintiff among the judgment of the court of first instance is excluded from the object of adjudication of the appellate court and thus becomes final and conclusive simultaneously with the judgment of the appellate court. In a case where the plaintiff filed an appeal against the part in favor of the
According to the records, the part of the damages for delay from October 27, 2001 to December 28, 2001 as to the principal repaid on December 28, 2001 by the plaintiff-Appellant 14,912,934 won as to the principal repaid on December 28, 2001, was excluded from the object of the judgment of the court below because there was no appeal or incidental appeal by the defendants, and thus, the judgment of the court below became final and conclusive simultaneously with the judgment of the court below. Thus, the plaintiff's appeal as to this part is against the part of the judgment of the court below
3. Conclusion
Therefore, among the judgment of the court below, the part against the plaintiff as to the claim for delay payment from October 27, 199 to December 29, 200, the respective principal amount repaid on 299 to December 28, 200, the remaining amount of damages for delay from October 27, 199 to October 26, 201 shall be reversed as it is unlawful. Since it is sufficient for the party members to directly decide on this case, the remaining amount of damages for delay shall be reduced as KRW 30, 296, 29, 30, 294, 29, 30, 97, 29, 96, 29, 97, 290, 97, 29, 97, 97, 97, 209, 96, 97, 97, 97, 199.
Justices Park Si-hwan (Presiding Justice)