[2] Whether an assumption of an obligation with immunity constitutes an acceptance of obligation, which is a cause interrupting extinctive prescription (affirmative)

[2] Where there is an assumption of an obligation with immunity, the period of extinctive prescription of the obligation to be acquired shall begin to run anew from the date of the assumption of the obligation according to the grounds for interruption of the extinctive prescription.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's first assertion that there is no collateral obligation of the above collateral on each real estate of this case as the debtor as the plaintiff and the mortgagee as the defendant in order to secure this obligation at the same time, and rejected the plaintiff's claim that there is no collateral obligation of the above collateral security right. The plaintiff's acquisition obligation against the defendant is the same as the commercial obligation originally borne by the non-party company, and five years have passed from November 14, 198, which is the date of the establishment of the above collateral security right. If the plaintiff's obligation against the defendant is assumed by the assumption of obligation, the completion of the extinctive prescription should be determined on the basis of the acceptance obligation, and as such, whether the obligation of the defendant is a commercial obligation should be determined on the basis of whether it is due to the assumption of obligation or assistive commercial activity between the creditor and the claimant, it should be determined on the basis of whether the obligation of the plaintiff was performed by the assumption of obligation between the creditor and the claimant and the claimant, and it should be rejected the plaintiff's claim that the above obligation was not established for 16 years.

2. However, the term "liability assumption" means a contract, the purpose of which is to maintain the identity of an obligation and to transfer it to an underwriter who is a third person from the former obligor. An underwriter due to the assumption of an obligation is to replace the former obligor and to bear the same obligation as the former obligor and to leave the former obligor at the same time with the former obligor as a party’s obligation relationship (see Supreme Court Decision 96Da27476, Oct. 11, 196). Thus, even if the obligation acquired is replaced by the obligor’s status according to the former five-year commercial statute of limitations, if the obligation acquired is subject to the latter five-year commercial statute of limitations, the term of the extinctive prescription is still five-year commercial statute of limitations, and this does not change because it does not constitute either an assumption of an obligation or ancillary commercial activity. However, the statute of limitations is only a new one that takes place simultaneously with the assumption of an obligation, i.e., the grounds for interruption of the extinctive prescription from the date of the assumption of the obligation (see Supreme Court Decision 198Da164, Oct. 1964, 197.

Nevertheless, the judgment of the court below, which held that the period of extinctive prescription of the undertaking obligation of this case is ten years with respect to civil liability, has not yet expired, shall be deemed to have committed an unlawful act of misunderstanding the legal principles as to the assumption of obligation and the extinctive prescription.

3. However, the defendant has a defense against the plaintiff's assertion that the plaintiff renounced the prescription benefits after the expiration of the statute of limitations. According to the records, on October 31, 1996, the defendant applied for voluntary auction of each of the real estate of this case on the basis of the above right to collateral security established to secure the obligation to acquire the real estate of this case. Accordingly, on November 4, 1996, the decision to permit the successful bid of each of the real estate of this case was made on December 26, 1996, and on March 3, 1997, the transfer of some of the real estate was entrusted. On the other hand, the plaintiff and the creditor, under their joint signature, submitted an application for the extension of the prescription period (No. 1-2 of this case) to the court of auction on January 11, 1997, and the plaintiff did not have a right to claim the extension of the statute of limitations period for the plaintiff's claim against the defendant of this case after the expiration of the prescription period.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the assumption of obligation and the statute of limitations as seen earlier, but as long as the waiver of prescription benefits is recognized as above, the above illegality of the court below does not affect the conclusion of the judgment, and the argument in the grounds of appeal is eventually groundless

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)