[물품대금][하집1994(2),55]
A. Requirements for the interruption of prescription due to provisional seizure
B. Whether the interruption of prescription due to provisional seizure continues until the principal lawsuit and the compulsory execution procedure based thereon are completed
C. In determining the resumption of the suspended statute of limitations, the part of the parties' claims
A. A provisional attachment has the effect of interrupting prescription that should be practically executed, and the application for provisional attachment or the decision of provisional attachment alone does not interrupt prescription.
B. A provisional seizure is completed upon the execution of the provisional seizure, and the preservation lawsuit is separate from the case on the merits. As such, even if the provisional seizure is executed and the interruption of prescription takes effect upon the provisional seizure, it shall not be interpreted that the interruption of prescription takes effect immediately thereafter, and that the interruption of prescription shall continue until the principal lawsuit and the subsequent seizure and other compulsory execution procedures are completed
C. Article 178 of the Civil Act concerning the resumption of suspended prescription is an interpretation provision on the effect of interruption of prescription, and as such, it does not require a separate legal requirement other than the grounds for interruption of prescription, the court shall determine whether the parties have asserted it as benefit.
Articles 168 subparag. 2 and 178(1) of the Civil Act; Article 187 of the Civil Procedure Act
Peaceic Industry Co., Ltd.
Maap Kim
Seoul District Court Decision 9Da12728 delivered on November 19, 1993
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The defendant shall pay to the plaintiff the amount of 13,158,045 won and the amount of 6% per annum from May 1, 1987 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date.
Among the judgment of the first instance, the part of the plaintiff's failure corresponding to the money ordered to be paid next shall be revoked.
The defendant shall pay to the plaintiff the amount of 5,205,183 won and the amount of 6% per annum from May 1, 1987 to the delivery date of a copy of the complaint of this case, and 25% per annum from the next day to the full payment date.
As the cause of the claim of this case, the plaintiff supplied plastic pipe to the defendant and the non-party Lee Sung-chul, who is a partner from the end of April 30, 1986 to April 30, 1987. The plaintiff did not receive 4,107,358 won out of the price, and for the above period, 9,050,687 won in total from the defendant and the non-party Lee Sung-chul-chul-chul-sung-sung-sung-sung-tae-tae-tae-tae-tae-tae-tae-tae-tae-tae-tae-tae-tae-Ma-tae-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ma-Ba, the defendant is liable to pay to the plaintiff 13,158,045 won in total. However, barring any special circumstance, the above claim of this case asserted by the plaintiff can be exercised from the supply date of the above pipe, and the period of extinctive prescription under Article 163 subparagraph 6 of the Civil Act with respect to the product and the product sold by producers.
As to this, on June 15, 1987, before the expiration of the above extinctive prescription period, the Plaintiff considered KRW 4,569,514 of the pipe price claim as preserved claim, and around that time, upon receiving a ruling of provisional seizure against immovables and corporeal movables as preserved claim, the Plaintiff alleged that the extinctive prescription period for each of the above preserved claim was suspended for KRW 9,22,531 of the above preserved claim. Considering the above facts as stated in the evidence No. 3-1 through 6, evidence No. 4-1 through 5, the extinctive prescription period of KRW 4,569,514 of the above pipe price claim, the period of extinctive prescription period of KRW 87Ka269,514 of the above 13-month claim, the period of extinctive prescription period of extinctive prescription cannot be deemed to have expired within the same period of time as indicated in the above provisional seizure claim No. 1465 of the above 15-month claim.
However, the period of prescription that has lapsed until the interruption of prescription is not included in the time limit to the effect of the interruption of prescription, and if the prescription is interrupted, it shall be determined regardless of whether the defendant's assertion has been invoked as profits, as seen above, since the provisional seizure of real estate recognized as a cause for interruption of prescription does not require any separate legal requirements other than the cause for interruption of prescription, as a provision on the effect of interruption of prescription, as it is an interpretation of the provision on the effect of interruption of prescription, and it shall be determined regardless of whether the defendant's assertion has been made. As seen above, the provisional seizure of real estate recognized as a cause for interruption of prescription has been executed on June 17, 1987, and its procedure has been terminated (the preservation lawsuit takes effect as a usual case, but it is separate from the procedure. If the interruption of prescription does not expire until the completion of the principal lawsuit and its attachment or other compulsory execution procedure, it can be deemed that it would result in an unreasonable disadvantage to the debtor due to provisional seizure that does not contain any intent of claim, and the plaintiff's assertion that has already been completed 16 years prior to the interruption of prescription.
Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just to the extent of the plaintiff's objection (the judgment of the court of first instance is not modified to the disadvantage of the plaintiff because the defendant did not appeal) and the plaintiff's appeal is dismissed and it is so decided as per Disposition.
Judges Don Pung-do (Presiding Judge)