Seoul High Court Decision 200Na14888 delivered on August 1, 200

Defendant

April 23, 2010

Seoul Western District Court Decision 2009Kahap11365 Decided November 13, 2009

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 208,51,550 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination on the cause of the claim

In full view of the evidence Nos. 1 and 1 evidence, the Plaintiff, who was engaged in the manufacture and sales business, etc. of phrases, from around 1999 to June 200, can be recognized as having failed to receive the total amount of KRW 208,51,550, and barring any special circumstance, the Defendant is liable to pay to the Plaintiff the balance of the goods prices and delayed payment thereof.

2. Judgment on the defendant's defense

A. As to the defense of acceptance of the discharged obligation

Around June 2005, the defendant transferred the defendant's business to the non-party, and at the time, the non-party alleged to the effect that he agreed with the plaintiff to be exempted from the obligation to pay the above goods, but it is not sufficient to recognize that there was an agreement to assume the obligation with the plaintiff on the sole basis of the evidence Nos. 2 and 5, and there is no other evidence to support this otherwise. Therefore,

B. As to the statute of limitations defense

Since the defendant defense that the plaintiff's claim for the price of goods was extinguished by the prescription, the defendant's claim for the price of goods in this case applies a short-term extinctive prescription of three years pursuant to Article 163 subparagraph 6 of the Civil Act as consideration for the goods sold by the plaintiff, which is the merchant. Since the lawsuit in this case was filed on September 1, 2009, which was three years after the day after the transaction relation of goods was terminated from June 2005, the above claim for price of goods was extinguished by the extinctive prescription, the defendant's defense is with merit.

3. Judgment on the plaintiff's second defense

As a result, the plaintiff re-appealed that the period of prescription has expired, the plaintiff filed an application for provisional seizure of claim amounting to KRW 222,37,302 against the third party debtor with the Seoul Western District Court 2007Kahap838, the debtor as the defendant and the third party debtor as the former Northern Bank and the Korean National Bank, and the third party debtor as the defendant's claim amounting to KRW 222,337,302, and received a provisional seizure order on May 23, 2007, and it is recognized that the provisional seizure order was delivered to the third party debtor around that time.

However, Article 175 of the Civil Act provides that "a seizure, provisional seizure, or provisional disposition shall not have the effect of interrupting prescription if it is revoked upon request of the right holder or because it does not comply with the provisions of law," and in full view of the purport of the entire pleadings in the statement in subparagraph 7, the plaintiff filed an application for cancellation of execution of the provisional seizure on June 29, 2007, and the notification of cancellation of execution of the provisional seizure on July 4, 2007 shall be delivered to the third obligor, respectively. Thus, the plaintiff's re-claim shall not be justified, as the provisional seizure was revoked upon request of the plaintiff who is the right holder.

As to this, the plaintiff asserts that if a provisional attachment is revoked at the request of the right holder, the case where the right holder voluntarily withdraws the application for provisional attachment and the case where the application for cancellation of provisional attachment is filed. Since the interruption of prescription continues during the existence of the preservation of execution of provisional attachment, the interruption of prescription retroactively should be interpreted only when the application for provisional attachment itself withdraws

However, as the plaintiff asserts, Article 168 of the Civil Act provides that the provisional seizure as a cause of interrupting prescription is because the obligee may be deemed to have exercised the right by the provisional seizure. Since the effect of preserving the execution by the provisional seizure continues to exist, the interruption of prescription by the provisional seizure shall continue during the duration of preserving the execution by the provisional seizure (see Supreme Court Decision 2000Da11102, Apr. 25, 200). However, in case where the provisional seizure is cancelled at the request of the right holder or because it does not comply with the provisions of law, the interruption of prescription shall retroactively lose its effect (see Supreme Court Decision 3526, Apr. 25, 200). Article 175 of the Civil Act provides that the interruption of prescription shall not have the effect of interrupting prescription if the provisional seizure is cancelled at the request of the right holder. Thus, the interruption of prescription remains until the effect of preserving the execution by the provisional seizure continues, and it shall be interpreted that the interruption of prescription shall retroactively lose its effect.

Therefore, the plaintiff's above assertion is without merit, based on the premise that provisional seizure under Article 175 of the Civil Code does not fall under the time when the provisional seizure is extinguished at the request of the right holder.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition as the plaintiff's appeal is dismissed.

Judges Gangnam-gu (Presiding Judge) Kim Jong-ok