[1] In a case where a right holder actively asserted his/her right as a defendant and accepted it, whether the cause for interruption of prescription constitutes “judicial claim” (affirmative) and whether Article 170(2) of the Civil Act applies mutatis mutandis to a case where a lawsuit is terminated without a judgment on the merits of the lawsuit on the grounds that the right holder actively asserted his/her right by responding to the time the interruption of prescription takes effect, but the lawsuit is dismissed or withdrawn (affirmative)

[2] The validity of the interruption of extinctive prescription due to the decision to specify the property

[3] In a case where the principal debt is extinguished upon expiration of the extinctive prescription, whether the joint and several debt is naturally extinguished according to the subsidiary nature (affirmative)

[4] The case holding that in a case where Eul, who subrogated for Eul's debt, filed a lawsuit against Byung who jointly and severally guaranteed Eul's liability for indemnity against Eul, and then received a decision of compulsory adjustment after nine years and four months from the date on which the decision of compulsory adjustment became final and conclusive, and thereafter Eul filed an application for an explanation of the property against Byung and Byung and served on Byung for an explanation of the property, and Eul filed a lawsuit against Eul and Byung, and Eul filed a lawsuit with Eul, and Eul and Byung actively asserted the existence of the obligation for indemnity by asserting that both the obligation for indemnity was extinguished within six months from the time when the decision was served, but Eul did not take any other interruption of prescription such as a judicial claim, etc. as to the obligation for indemnity against Eul, even after the completion of the lawsuit due to Gap's submission of the written withdrawal of the lawsuit, the extinctive prescription of the obligation for indemnity against Eul, which is the principal obligation, has expired, and the obligation for joint and several debt of Byung, as a matter of course, becomes extinct according to the subsidiary nature of Byung

[1] “A judicial claim” as one of the causes interrupting prescription under Articles 168 subparag. 1 and 170(1) of the Civil Act refers to a case where a right holder claims a right which is a subject matter of prescription against the Plaintiff as the Defendant in the form of a lawsuit. However, as to the Plaintiff’s filing of a lawsuit, the case where the claimant for prescription has actively asserted a right in the lawsuit as the Defendant and has accepted it. The effect of interrupting prescription due to the act of a lawsuit as mentioned above lies in the case where the Defendant, who is the right holder, claims a right by the Defendant’s response, but the lawsuit is terminated without determination as to the principal claim within the subject matter of prescription due to such reasons as the dismissal or withdrawal of the lawsuit, etc. However, in cases where the lawsuit is terminated without determination as to the principal claim within the subject matter of prescription, by analogy of Article 170(2) of the Civil Act, it shall be deemed that the interruption of prescription becomes retroactively effective at the time of the

[2] If a creditor files an application to specify a debtor's property under the Civil Execution Act for the realization of a claim based on a final judgment, and the decision is served on the debtor, the interruption of the extinctive prescription by the decision to specify the property is recognized only as a "Peremptory" which is the cause interrupting the extinctive prescription. Thus, the interruption of the extinctive prescription by the decision to specify the property shall lose its effect unless the procedure as stipulated in Article 174 of the Civil Act is not continued,

[3] Even if the extinctive prescription for a joint and several liability is suspended, it shall not be interrupted, and if the principal obligation is extinguished by the completion of the extinctive prescription, the joint and several liability shall also be extinguished by incidental nature, regardless of the interruption of prescription for the obligation itself.

[4] The case holding that in case where Gap filed a lawsuit against Byung who jointly and severally guaranteed debt of Eul against Byung who jointly and severally guaranteed debt of Eul, and then received a decision of compulsory adjustment after nine years and four months have passed from the date on which the decision of compulsory adjustment became final and conclusive, Eul filed an application for an explanation of property against Byung and Byung and then served on Byung for an explanation of property name, and Eul filed a lawsuit against Byung and Byung, and Eul actively asserted the existence of the liability for indemnity upon Eul's response, but Eul submitted a written withdrawal of the lawsuit to the court of first instance and submitted the written withdrawal of the lawsuit against Eul, and thereafter failed to take other measures, such as a judicial claim, against Eul's obligation for indemnity within six months from the date on which the lawsuit against Eul became final and conclusive, and the extinctive prescription of Eul did not become final and conclusive due to the interruption of extinctive prescription as to Eul's obligation for indemnity against Byung's principal debt as a result of the interruption of extinctive prescription as to the principal debt of Byung's claim for reimbursement, etc., within six months from the date the lawsuit against Eul was withdrawn of prescription.

[1] Articles 168 subparag. 1 and 170 of the Civil Act / [2] Article 174 of the Civil Act, Articles 61 and 62 of the Civil Execution Act / [3] Articles 169, 430, and 440 of the Civil Act / [4] Articles 168 subparag. 1, 169, 170, 173, 430, and 440 of the Civil Act, Articles 61 and 62 of the Civil Execution Act

[1] Supreme Court en banc Decision 92Da47861 Decided December 21, 1993 (Gong1994Sang, 487), Supreme Court Decision 2005Da59383, 59390 Decided December 23, 2005 (Gong2006Sang, 174), Supreme Court Decision 2008Da42416, 42423 (Gong2010Ha, 179) Decided August 26, 2010 / [2] Supreme Court Decision 91Da41118 Decided February 11, 1992 (Gong192, 103), Supreme Court Decision 200Da32161 decided May 29, 2001 (Gong201304Ha164 decided May 26, 201)

Plaintiff (Attorney Yoon-hee et al., Counsel for the plaintiff-appellant)

Defendant

Ulsan District Court Decision 2010Na6567 decided August 11, 2011

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 168 subparagraph 1 of the Civil Act and Article 170 (1) of the Civil Act generally stipulate a judicial claim as one of the causes for interruption of prescription as the defendant. It refers to a case where the right holder claims prescription as the plaintiff in the form of a lawsuit, which is the subject matter of lawsuit, as the defendant, against the plaintiff, the plaintiff who asserts prescription. However, it includes a case where the defendant has actively asserted the right in the lawsuit and has accepted it. The effect of interruption of prescription due to the act of the response as above takes place when the defendant has actually exercised his/her right: Provided, That in a case where the lawsuit has been terminated without determination as to the right holder due to such reasons as the dismissal or withdrawal of the lawsuit, Article 170 (2) of the Civil Act shall apply mutatis mutandis from that time to that time, and it is reasonable to view that the interruption of prescription becomes retroactively effective at the time of the lawsuit, such as a claim for interruption of extinctive prescription within 6 months from that time of the lawsuit, and where the lawsuit has not been concluded within 20 months from that time of the provisional decision, it shall be deemed to have become effective (see Supreme Court Decision 2008Da42616.

Meanwhile, even if the extinctive prescription of a joint and several surety obligation is suspended, it does not necessarily suspend the extinctive prescription for the principal obligation, and if the principal obligation ceases to exist due to the completion of the extinctive prescription, the joint and several surety obligation shall naturally be extinguished according to the nature of the principal obligation regardless of the interruption of prescription (see Supreme Court Decision 2000Da62476, May 14, 2002).

In light of the reasoning of the judgment below and the records, the defendant filed a lawsuit against the non-party 2 against the non-party 1 and the non-party 2 on 1997. From 198 to 199, the plaintiff paid 35,192,507 won of each of the loans to the financial institutions on behalf of the non-party 2. The plaintiff was jointly and severally liable for reimbursement of the non-party 2 to the non-party 1 on October 17, 1998. The defendant filed a lawsuit against the non-party and the plaintiff for reimbursement of the amount equivalent to the above amount of reimbursement on the non-party 2's claim against the non-party 1 and the non-party 2 on the non-party 2 on 198. The plaintiff's claim against the non-party 1 and the non-party 2 on 100,000 won of the total amount of subrogated payment and the non-party 2's claim for reimbursement against the non-party 1 and the non-party 3.

Examining the above facts in light of the legal principles as seen earlier, although the non-party actively asserted the existence of the claim for reimbursement of this case against the defendant within 6 months from the time when the decision to specify the property against the non-party, who is the principal debtor, was delivered to the non-party, by submitting a written response, and the lawsuit against the non-party was terminated without any determination as to the existence of the claim for reimbursement of this case on the grounds of withdrawal of the lawsuit against the non-party. The lawsuit against the non-party was terminated without any determination as to the non-party's claim for reimbursement of this case against the non-party, who is the principal debtor, within 6 months from the time when the lawsuit against the non-party was withdrawn. As such, the interruption of the prescription period due to the defendant's act of acceptance of the lawsuit, the non-party's claim for reimbursement of this case against the non-party's principal debtor, which is the principal debtor, was terminated after 10 years from the time when the decision of compulsory adjustment of this case became final and conclusive. Furthermore, since the plaintiff's claim for reimbursement of this case against the non-party's principal debt of this case is terminated.

Nevertheless, the court below erred by misapprehending the legal principles as to the interruption of extinctive prescription and the subsidiary nature of the joint and several several liability debt, thereby adversely affecting the conclusion of the judgment, on the ground that the extinctive prescription of the non-party’s claim against the defendant, who is the primary debtor, was suspended due to the defendant’s act of responding to the lawsuit filed against the defendant against the non-party.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)