[2] The validity of the decision of provisional seizure by which the deceased person is an obligor (negative) and the provisional seizure by which the invalidation by reason of the delay constitutes grounds for interruption of extinctive prescription under Article 168 subparagraph 2 of the Civil Code (negative)

[3] In a case where an inheritor neglected to file a death report of an inheritee and file a registration of inheritance, and an obligee does not object to provisional seizure against an inheritee as the respondent, whether the heir's claim for the expiration of extinctive prescription can be deemed as an abuse of rights (negative)

[2] Even if the request for provisional seizure made by the deceased person as the respondent is illegal and a provisional seizure decision was rendered in accordance with such request, the decision does not have its validity to the inheritor. Such provisional seizure does not constitute a ground for suspending extinctive prescription under Article 168 subparagraph 1 of the Civil Code.

[3] If an inheritor's act of taking the inherited obligation simply neglects the report of death of the inheritee and the registration of inheritance by making the deceased inheritee the obligee the provisional seizure on the inherited real estate as the respondent, leaving the deceased inheritee do so, raising an objection to such provisional seizure, or failing to notify the obligee of the death of the inheritee, or otherwise failing to do any other act that could prevent or interfere with the obligee's exercise of rights, the heir's claim for the expiration of the extinctive prescription does not constitute an abuse of rights.

1. Determination as to the assertion on the validity of each contract of this case

In full view of the evidence adopted by the court below, it is just for the court below to recognize that all of the plaintiffs' joint and several liability and mortgage contract between the deceased non-party and the defendant on June 13, 1991 and the joint and several liability contract on October 4, 1991 were concluded lawfully and effectively, and to reject the plaintiffs' assertion that the non-party was in a state of business capacity at the time of the conclusion of each of the above contracts, or that the right to represent the joint and several liability contract on October 4, 191 was not granted to Park Jong-man, and there is no illegality such as misconception of facts against the rules of evidence. The plaintiffs' grounds for appeal on this part are not accepted.

2. Determination on the assertion of extinctive prescription

A. Article 440 of the Civil Act provides that “The interruption of the prescription against the principal debtor shall have its effect on the guarantor” that Article 169 of the Civil Act provides that “The interruption of the prescription shall take effect only between the parties and their successors.” This is a special provision prepared to protect creditors or secure the security of claims, rather than by declaring a natural legal doctrine due to the nature of the subsidiary nature of the guaranteed obligation. The above provision is a provision regulating conflicting creditors and the interests of the principal debtor, it is desirable to faithfully interpret it as much as possible. The literal meaning of the above provision is that if a cause for the interruption of prescription has occurred against the principal debtor, the interruption of the prescription shall take effect at the same time, and it does not mean that the interruption of the prescription has effect on the guarantor as a matter of course even after the interruption of prescription.

Meanwhile, Article 165(1) of the Civil Act provides, “The period of extinctive prescription of a claim established by a judgment shall be ten years, even if the claim falls under the short-term extinctive prescription.” This is because even if a claim subject to a short-term extinctive prescription becomes final and conclusive by a judgment, there is no room for dispute over the establishment or extinguishment of a claim, and the need to promptly determine legal relations is extinguished, and it is not desirable to allow a creditor to take various suspended procedures in order to suspend the short-term extinctive prescription. However, even if a guaranteed obligation is subordinate to a principal obligation, even if the principal obligation becomes final and conclusive by a judgment, it is independent from the principal obligation, and thus, even if the principal obligation becomes final and conclusive by a judgment between the creditor and the principal obligor, it does not constitute a dispute over the establishment and extinguishment of a guaranteed obligation as a matter of course, and thus, the need to apply a short-term extinctive prescription to disputes over the establishment and extinguishment of a guaranteed obligation, if a creditor later exercises his/her right to exercise

In full view of the above provisions and legislative purport of Articles 440 and 165 of the Civil Act, even if the principal obligation becomes final and conclusive by a final judgment between a creditor and a principal obligor, and the period of extinctive prescription has been extended to ten years, this does not necessarily preclude the application of short-term extinctive prescription to the guaranteed obligation, and thus, the ten-year period of extinctive prescription is not applicable, and the period of extinctive prescription for the joint and several surety obligation between a creditor and a joint and several surety is still based on the previous extinctive prescription period (see Supreme Court Decision 86Meu1569, Nov. 25,

Unlike this, the court below rejected the plaintiffs' assertion that the period of extinctive prescription of the non-party's joint and several several surety obligation is still five years, since the principal obligation of sewage and water production company, which is a commercial liability, was extended to ten years by a final judgment on November 14, 1996, as long as the period of extinctive prescription is extended to ten years by a final judgment, the period of extinctive prescription of the non-party's joint and several surety obligation is still extended to ten years. The court below erred in the misapprehension of legal principles as to the period

B. Even if an application for provisional seizure filed by a deceased person as the respondent is illegal and the provisional seizure decision was made in accordance with such application, such decision does not affect the inheritor (Supreme Court Decision 2000Da30578 Delivered on April 26, 2002), and such provisional seizure does not constitute provisional seizure which is the cause of interruption of extinctive prescription under Article 168 of the Civil Act.

This is clear in light of the fact that Article 175 of the Civil Act does not recognize the validity of the interruption of prescription with respect to a provisional attachment revoked due to the non-compliance with the provisions of the law, and the fact that the interruption of the extinctive prescription by a provisional attachment continues to exist during the duration of the preservation of enforcement, and that it is much stronger than a judicial claim that has been suspended due to the final and conclusive judgment, it cannot be deemed appropriate to treat an extinctive prescription as a cause of interruption of

Unlike this, the court below rejected the plaintiffs' assertion that as long as the non-party filed an application for provisional attachment with the non-party as the respondent after the non-party died on September 13, 1993, the provisional attachment decision of July 18, 200 based on the application constitutes an inevitable invalidation, and as long as the defendant's intent to exercise his right was confirmed through this, the inheritance obligation of this case is deemed to constitute a cause for suspending the extinctive prescription, such as legitimate provisional attachment, and as long as the defendant's intent to exercise his right was confirmed, the extinctive prescription has expired five years after the final judgment of November 14, 1996, it erred by misapprehending the legal principles as to the cause for suspending the extinctive prescription,

C. The obligor’s exercise of the right of defense based on the statute of limitations is subject to the principle of good faith and prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, in special cases where the obligor has become unable or considerably difficult to exercise the obligee’s right or interruption of prescription prior to the completion of the statute of limitations, or where the obligee has acted to believe that such measures are unnecessary, or the obligee has objectively obstructed the obligee from exercising its right, or where the obligor has shown the same attitude that the obligor would not invoke the statute of limitations after the expiration of the statute of limitations, or where other creditors of the same condition receive the repayment of the obligation, etc., the obligor’s refusal to perform the obligation is remarkably unfair or unfair, it cannot be allowed to assert the completion of the statute of limitations as an abuse of rights against the principle of good faith (see Supreme Court Decision 2004Da7181, May 13, 2005). However, if an inheritor’s act of bearing the inheritance obligation merely interferes with the obligee’s exercise of the right against the inheritee’s death by neglecting or provisional attachment.

Unlike this, the court below held that the plaintiffs' assertion that the extinctive prescription has not expired or that the extinctive prescription has not expired or that the extinctive prescription has not expired is against the principle of trust and good faith, without examining whether there was any other act that could prevent or interfere with the exercise of rights by the defendant, a creditor, on the ground that the plaintiffs neglected the deceased non-party's death report and the registration of inheritance on inherited property to the deceased non-party as the respondent and neglected to make a provisional attachment against the non-party as the respondent, and even thereafter, did not notify the defendant of the death or raise any objection against the provisional attachment.

Ultimately, the decision of the court below that rejected the plaintiffs' assertion that all inheritance debts of this case were extinguished due to the expiration of extinctive prescription cannot be maintained as it is.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff (Counterclaim defendant) regarding the claim for confirmation of non-existence of inheritance obligation and the counterclaim is reversed without examining the remaining grounds of appeal. It is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiff (Counterclaim defendant) are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)