(영문) 대법원 2017.7.18.선고 2017다9671 판결

A. The plaintiff filed a lawsuit against the defendant seeking the payment of investment amounting to KRW 13 million with Seoul Central District Court 2005Gada93187, which was held on June 16, 2005, and the plaintiff and the defendant among the plaintiff and the defendant: (i) the intervenor in conciliation with the defendant jointly and severally paid to the plaintiff KRW 13 million; (ii) the remaining 6.5 million won shall be paid until July 31, 2005; and (iii) the remaining 6.5 million won shall be paid until August 30, 2005; and (iv) if the above amount is not paid by the payment date, the damages for delay calculated at a rate of 20% per annum from the day following the above payment date to the day of full payment; and (iii) the plaintiff did not execute the execution under the conciliation protocol with the defendant and C until October 31, 2005 (hereinafter referred to as the "instant conciliation").

B. On May 19, 201, the Plaintiff filed an application for the cancellation of the attachment and collection right of the Defendant’s deposit claim against the Defendant’s financial institution for the cancellation of the attachment and collection right of the claim on June 3, 2011, when the Plaintiff received the attachment and collection order of the claim under the Seoul Northern District Court 201TTTT 201T 12716. ② On September 28, 2011, the Plaintiff filed an application for the cancellation of the attachment and collection right of the claim under the same court 201T 22379, which was issued on June 1, 2012, and ③ on February 1, 2013, upon receipt of the attachment and collection order of the claim under the court 2012TT 22644, which was issued on July 15, 2013.

C. On July 30, 2015, the Plaintiff filed the instant lawsuit for the interruption of extinctive prescription of claims based on the instant conciliation.

2. According to the reasoning of the lower judgment, on the basis of the foregoing factual basis, the lower court determined that the Plaintiff’s lawsuit in this case was unlawful on the grounds that, on the grounds that it is difficult to deem that the completion of extinctive prescription was imminent on July 30, 2015, on the grounds that it was difficult to view that the Plaintiff’s lawsuit in this case did not have a benefit of lawsuit, and thus, the interruption of extinctive prescription was interrupted due to the seizure of each of the above claims.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Article 168 subparag. 2 of the Civil Act provides that "a seizure, provisional seizure, or provisional disposition" is a cause interrupting the extinctive prescription. Article 175 of the Civil Act provides that "a seizure, provisional seizure, or provisional disposition shall have no 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". Here, "when it is revoked upon request of the right holder" refers to cases where the right holder withdraws the application for seizure, provisional seizure, or provisional disposition, and "no effect of interrupting prescription" means that the interruption of the extinctive prescription becomes retroactively null and void (see Supreme Court Decision 2010Da63591, Nov. 13, 2014).

B. Examining the facts as seen earlier in light of the aforementioned legal principles, it is reasonable to view that there exists a benefit of lawsuit for the interruption of extinctive prescription as the Plaintiff’s filing of an application for release of all the claims constitutes “when an application for release of the entire claim is revoked upon the request of the right holder” under Article 175 of the Civil Act when the application for release of the claim was withdrawn, and thus, the effect of discontinuation is retroactively lost at the time of extinguishment. Accordingly, since it is apparent that the period of extinctive prescription for the claim based on the conciliation of this case has expired at the time of the filing of the lawsuit in this case, it is reasonable to view that there is no benefit of lawsuit. Nevertheless, the lower court determined otherwise, by misapprehending the legal doctrine on the validity of withdrawal of the application for release

4. Therefore, 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.