In case a lawsuit is transferred, the effective date of interruption of prescription following the lawsuit (=when a lawsuit is filed with a transferred court)

Articles 40(1) and 265 of the Civil Procedure Act

Supreme Court en banc Decision 83Meu1981 Decided February 28, 1984 (Gong1984, 589)

Korea Labor Welfare Corporation

National Passenger Transport Business Federation (Attorney Ocheon-min et al., Counsel for defendant-appellant)

Daejeon District Court Decision 2006Na13887 Decided July 6, 2007

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

The grounds of appeal are examined.

According to the records, the plaintiff submitted the complaint of this case to the Daejeon District Court on October 25, 2005, and the above court transferred the complaint to the first instance court on October 31, 2005 on the ground that this case does not fall under its jurisdiction and received the record on November 21, 2005.

However, on the premise that the time when interruption of extinctive prescription takes effect upon the filing of the instant lawsuit is the time when the records were received by the transfer decision to the first instance court, the lower court determined that, on November 21, 2005, the record entered in the first instance court was completed on November 21, 2005, 3 years have passed since November 17, 2002, deeming that the Nonparty was aware of the damage and the perpetrator, and that the Nonparty’s right to claim damages against the Defendant on behalf of the Plaintiff was completed by the short-term extinctive prescription of 3 years under Article 766(1) of the Civil Act.

However, the Supreme Court held that when a decision of transfer becomes final and conclusive, a lawsuit shall be deemed to have been pending at the court to which the lawsuit was transferred from the beginning (Article 40(1) of the Civil Procedure Act) and that when a lawsuit is transferred, whether the legal period should be observed should be determined at the time when the lawsuit was brought to the court to which the lawsuit was transferred, not at the time when the lawsuit was transferred (Supreme Court en banc Decision 83Meu1981 Decided February 28, 1984). Meanwhile, Article 265 of the Civil Procedure Act provides that the same provision concerning the interruption of prescription following the lawsuit and the time when compliance with the statutory period takes place when the lawsuit is transferred, the opinion that the above decision takes as to the time to determine

Thus, as long as the lawsuit in this case was filed with the Daejeon District Court on October 25, 2005, before the expiration of the three-year extinctive prescription period, the extinctive prescription was interrupted, the court below rejected the plaintiff's re-appeal for the interruption of extinctive prescription on the grounds of its decision. Thus, the judgment of the court below is erroneous in the judgment contrary to the Supreme Court precedents.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Ill-sook (Presiding Justice)