[1] The method to determine whether there exists an expression of intent to waive the prescription benefit

[2] Whether the expression of intent to waive the benefit of extinctive prescription can be deemed to have existed immediately in a case where an obligation falling under the cause for interruption of the extinctive prescription is approved after the expiration of the statute

[3] In a case where a set-off objection is made first and thereafter there exists a defense for the lapse of the statute of limitations, whether it may be deemed that the obligor had intent to waive the prescription interest of the loan claim, which is the passive credit, at the time of the set-off objection (negative), and whether the same applies in a case where a set-off objection is first made in the appellate trial and the extinctive prescription objection has been changed (affirmative

[1] An obligor entitled to the benefits of prescription may waive the benefits of prescription after the completion of the statute of limitations, and this is an expression of intent to not receive legal benefits due to the completion of the statute of limitations. Furthermore, determination as to whether there exists an expression of intent to waive such benefits of prescription shall be made objectively and reasonably in accordance with logical and empirical rules and the common sense of society so that it conforms to the ideology of social justice and equity by comprehensively examining the substance, motive and background of the act indicated and the expression of intent, the purpose and genuine intent of the obligor to achieve by the expression of intent

[2] The so-called concept of recognition of an obligation as a ground for interrupting extinctive prescription is established by notifying the obligor, who is a party to the benefit of prescription, to the effect that the obligor is aware of the other party’s right or its obligation to the person who would lose the claim upon the completion of the extinctive prescription period. On the contrary, for recognition of waiver of the benefit of prescription after the completion of prescription, there is a need to express the intent of effect that the obligor who receives the benefit of prescription would not receive any legal benefit due to the completion of the prescription period. Therefore, even if the approval of the obligation corresponding to the ground for interrupting extinctive prescription was granted after the expiration of

[3] The offset defense in a lawsuit generally has the nature of a preliminary defense that offsets the Defendant’s obligation to pay money by an automatic claim in a case where the Defendant’s obligation to pay money is acknowledged by means of an attack and defense in the lawsuit. Therefore, in a case where the offset defense was first made and thereafter there was a defense of extinctive prescription claiming the extinction of the claim for loans, it cannot be readily concluded that there was an intent to waive the prescription benefits of the claim for loans, which is the obligor, at the time of the offset defense. Moreover, considering that the judgment of the appellate court is the inner structure of the appellate trial, the offset defense in the first instance court is first made by means of attack

[1] Article 184 of the Civil Act / [2] Articles 168 and 184 of the Civil Act / [3] Article 184 of the Civil Act

Promotion Enterprises Corporation

Future Security Industry Development (Attorney Fixed-soo et al., Counsel for defendant-appellee)

Seoul High Court Decision 2010Na51842 decided January 14, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. An obligor entitled to the benefits of prescription may waive the benefits of prescription after the completion of the statute of limitations, and this is an expression of intent to not receive legal benefits from the completion of the statute of limitations. Moreover, whether there exists an expression of intent to waive such benefits of prescription should be objectively and reasonably determined in accordance with logical and empirical rules, and the common sense of society, by comprehensively taking into account the content, motive and background of the act or expression of intent, the purpose and genuine intent that the obligor seeks to achieve by the said expression of intent, etc., in line with the principles of social justice and equity.

2. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff lent KRW 150 million to the defendant on August 29, 2003, and KRW 150 million on September 29, 2003 without fixing the due date for payment. Since it is evident that the plaintiff applied for the payment order of this case on November 23, 2009 after five years from the above lending date, the plaintiff's claim of this case against the defendant for the loan of this case against the defendant was completed five years from commercial bonds. Meanwhile, while the defendant acknowledged the statute of limitations for the plaintiff's claim of this case related to the promotion of the housing redevelopment project of Zone Three as of January 7, 2010 during the proceeding of the first instance court, the court below acknowledged the existence of the plaintiff's claim of this case related to the promotion of the housing redevelopment project of Zone Three as to the plaintiff's claim of this case (Evidence 1-1, 2, 2-1, 2-1, 2-2) and recognized the statute of limitations period for the plaintiff's claim of this case.

3. However, in light of the above legal principles and records, we cannot accept the judgment of the court below in the following respect.

The so-called concept of recognition of an obligation as a ground for interruption of extinctive prescription is established when an obligor, who is a party to the benefit of prescription, knows the other party’s right or his/her obligation to the person who is to lose the claim due to the completion of extinctive prescription, and thus, it is unnecessary to have any effect therefrom. On the contrary, in order to recognize waiver of the benefit of prescription after the completion of extinctive prescription, there is a need for the effect that the obligor who receives the benefit of prescription would not receive any legal benefit due to the completion of extinctive prescription. Therefore, even if an obligation was approved as a ground for interruption of the extinctive prescription

According to the records, the plaintiff filed an application for a payment order against the defendant, and the defendant did not comply with it and raised an objection, and then filed a judgment dismissing the plaintiff's claim for the loan of this case, and thus, it should be viewed that the defendant had an intention to dispute the existence of the loan claim asserted by the plaintiff.

In addition, the offset defense in a lawsuit generally refers to the preliminary defense that offsets the Defendant’s obligation to pay money by an automatic claim in a case where the obligor’s obligation to pay money is recognized by means of an attack and defense in the lawsuit. Therefore, in a case where the offset defense has first been made and thereafter there was a defense of extinctive prescription claiming the extinction of the claim for loans, it cannot be readily concluded that there was an intent to waive the prescription benefits of the claim for loans, which is the obligor, at the time of the offset defense. Moreover, considering that the judgment of the appellate court is the inner structure of the trial, the offset defense in the first instance court is first made by means of attack and defense,

In conclusion, it cannot be readily concluded that the Defendant expressed his/her intent not to receive legal benefits due to the expiration of the statute of limitations on the part of the first instance court, solely on the ground that the Defendant, prior to the lapse of the statute of limitations, set-off at the lower court’s first instance court.

Meanwhile, it cannot be deemed that the Defendant had the Plaintiff feel a reasonable expectation or trust that the Defendant would no longer invoke the statute of limitations on the ground that the Defendant, after the expiration of the statute of limitations for the instant loan claim, made a set-off objection and thereafter, cannot be deemed as contrary to the good faith principle.

Nevertheless, the lower court determined that the Defendant renounced the extinctive prescription benefits after the expiration of the extinctive prescription period, referring only to the circumstances in which the Defendant made an objection against set-off prior to the lapse of the extinctive prescription period. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of extinctive prescription benefits, thereby adversely affecting the conclusion

4. Conclusion

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 Park Poe-dae (Presiding Justice)