[2] In a case where a creditor files an application for a compulsory execution against corporeal movables on the grounds of a bill for which the extinctive prescription has already expired, and the debtor fails to raise any objection until the proceeds of sale of corporeal movables were delivered to the creditor and appropriated for a partial repayment of the debt, whether the debtor is deemed to have waived the benefit of extinctive prescription against the bill, and whether the extinctive prescription period for the underlying claim is re-ended

[2] In a case where a debtor partly pays his/her obligation after the expiration of the extinctive prescription, unless there is any dispute over the amount, it shall be deemed that the whole amount of the obligation is impliedly approved, and in such a case, it is presumed that the creditor, who already holds an executive title based on a bill of exchange, applies for compulsory execution against corporeal movables by the debtor, and the proceeds from sale of corporeal movables were delivered to the creditor and the debtor did not express any objection until they are appropriated for partial repayment of the obligation, barring special circumstances, such as where the debtor was unaware of the progress of the compulsory execution procedure, the debtor may be deemed to waive the benefit of extinctive prescription against the underlying claim, and the extinctive prescription period of the underlying claim shall run again. However, in order to deem that the debtor’s benefit of extinctive prescription has been renounced, it shall be proved that the proceeds from sale of corporeal movables were delivered

1. In a case where an obligee exercises his right by seizing the obligor’s property based on a claim claim between the parties to whom a bill has been received in order to secure payment of the underlying claim, the statute of limitations for the underlying claim is effective (see Supreme Court Decision 2000Da25484, Feb. 26, 2002). However, since the statute of limitations has expired after the completion of the extinctive prescription for the underlying claim, and there is no room to recognize the interruption of prescription, even if the obligor’s property is seized with the claim extinguished by the statute of limitations, it cannot be deemed as a lawful exercise of right to realize the underlying claim, and thus, the statute of limitations for the underlying claim cannot be deemed to be interrupted

Meanwhile, in a case where a debtor partly pays his/her obligation after the completion of the extinctive prescription, unless there is any dispute over the amount, it shall be deemed that the debtor explicitly acknowledged the whole obligation, and in such a case, it is presumed that he/she renounced its benefit with the knowledge of the fact that the prescription has expired (see Supreme Court Decision 2001Da3580, Jun. 12, 2001, etc.). Therefore, in a case where the creditor, who already holds executive title on the ground of a claim for a bill with an executory power, applies for compulsory execution against corporeal movables by the debtor, and the debtor did not raise any objection until the proceeds of the compulsory execution procedure were delivered to the creditor and appropriated for partial repayment of the debt, barring any special circumstances, such as the debtor's failure to know about the progress of the compulsory execution procedure, the debtor may be deemed to waive the benefit of extinctive prescription against the claim. The extinctive prescription period of the underlying claim shall run again, but in order to see this as a waiver of the benefit

2. According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. Since the lawsuit of this case was filed on August 1, 2008 after the lapse of 10 years from September 18, 1992, the maturity date for the claim of this case under the agreement of this case, the claim of this case is still extinguished before the lawsuit of this case is filed. However, on December 18, 1991, the defendant and the non-party 1 and the non-party 2 were the plaintiff as the payee on December 18, 199, the face value amount of 80,000,000 won, and the due date for the issuance of promissorysory notes as of September 18, 192, if the issuer delays the payment of the above promissorysory notes, the court below determined that there was no objection even if they were forced execution, and that the defendant again renounced the above claim of this case as to the non-party 1 and the non-party 2 as the debtor.

3. However, according to the reasoning of the judgment of the court of first instance and the judgment below, the plaintiff applied for compulsory execution against the corporeal movables of the non-party 2 on October 21, 1996 on the ground of the authentic copy of the notarial deed of a promissory note in 1995, and received partial payment of KRW 1,736,500 from the proceeds of sale. The plaintiff applied for compulsory execution against the above corporeal movables of the defendant and the non-party 2 on the ground of the authentic copy of the notarial deed of a promissory note again in 1998, and received partial payment of KRW 1,658,00 from the proceeds of sale of the corporeal movables seized in the above execution procedure on February 11, 1999. Since it is apparent that the time of application for compulsory execution against the defendant's corporeal movables in 198 is the time when three years have passed since the period of extinctive prescription of the above claim, even if the defendant's property was seized as the claim extinguished by the prescription, it cannot be interrupted.

Therefore, it is a problem whether the plaintiff's partial repayment of KRW 1,658,00, which was applied in the compulsory execution in 1998, constitutes the defendant's proceeds of corporeal movables.

According to the records, the defendant, at the time of compulsory execution filed in 198 consistently, failed to seize corporeal movables because it was no one at the time when he was living together at a relative house, and the execution officer did not seize corporeal movables. After that, the execution officer attached Nonparty 2's corporeal movables to the residence of Nonparty 2 and submitted Nonparty 2's confirmation document, etc. corresponding thereto. On the contrary, the court below's determination that the record of compulsory execution filed in 1998 was destroyed at the expiration of the preservation period and it cannot be confirmed accurately as to whom the defendant and Nonparty 2 were seized corporeal movables among the defendant and Nonparty 2 as at the time of the compulsory execution filed in 198, and that there was no error in the misapprehension of legal principles as to electronic data as to the remaining grounds for appeal by the defendant's failure to verify whether there was a seizure of corporeal movables between the defendant and Nonparty 2 as at the time of the application for 1998. In particular, it is insufficient to conclude that the court below erred in the misapprehension of legal principles as to this part of the extinctive prescription.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)