Whether the interruption of prescription by a notice for payment recognized under Article 98 of the Budget and Accounts Act applies to claims arising from private grounds (affirmative)

Article 98 of the Budget and Accounts Act provides that a notice of payment given by the State is effective under the provisions of the Act, so that the interruption of prescription of the Civil Act is exceptional to the effect of the interruption of prescription. In the event that a notice of payment is given through the forms and procedures prescribed by Article 51 of the Budget and Accounts Act and Article 26 of the Enforcement Decree of the Budget and Accounts Act with respect to a claim of the State for the payment of money, the cause of the claim becomes effective

Articles 51, 96, and 98 of the Budget and Accounts Act, Article 26 of the Enforcement Decree of the Budget and Accounts Act

Supreme Court en banc Decision 76Da1720 Decided February 8, 1977 (Gong1977, 919)

Korea

Defendant 1 and one other (Attorney Long-term, Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na57018 delivered on June 8, 2001

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

1. The judgment of the court below

The court below acknowledged that the non-party, who is a member of the defendants, died while serving in the military, filed a lawsuit against the plaintiff and received KRW 79,98,250 as a provisional execution money based on the judgment of the court of first instance after having rendered a judgment in favor of the plaintiff, and that the judgment was eventually revoked and became final and conclusive as the judgment lost by the defendants, and determined that the defendants are liable to return the money provisionally executed by the plaintiff as a return of unjust enrichment.

The Defendants asserted that the Defendant’s obligation to return unjust enrichment against the Plaintiff was extinguished by prescription, and the lower court determined that the Defendant’s obligation to return unjust enrichment against the Plaintiff was extinguished by prescription, barring any special circumstance, on the grounds that the Plaintiff’s claim to return unjust enrichment against the Defendants was filed on October 21, 1994, which was five years after the statute of limitations expired pursuant to Article 96(1) of the Budget and Accounts Act, and the Defendant’s claim to return unjust enrichment against the Defendants was revoked by the judgment in favor of the Defendants, which became final and conclusive on October 21, 199.

As the judgment in favor of the Defendants in favor of the above Defendants became final and conclusive, the Plaintiff’s resolution of revenue on the Plaintiff’s claim for refund of provisional execution money against the Defendants was passed, and on November 15, 1997, notified the Defendants of payment equivalent to the amount of the provisional execution money, and thus, the Defendants’ claim that the statute of limitations for the return of unjust enrichment against the Plaintiff was interrupted. The lower court acknowledged the fact that the Plaintiff issued a notice of payment to the Defendants on November 15, 1997 that the Defendants would pay the money received as provisional execution and the interest accrued therefrom to the State, and rejected the Plaintiff’s claim

In other words, Article 98 of the Budget and Accounts Act provides that the interruption of prescription is effective when a notice of payment has been given under the provision of law. However, unlike Article 174 of the Civil Act recognizes the provisional effect of the provisional interruption of prescription between six months with respect to the "peremptory notice of general creditors", the reason why Article 98 of the Budget and Accounts Act recognizes the effect of the fixed interruption of prescription with respect to the "peremptory notice of payment by the State" as to the "peremptory notice of general creditors" is that Article 98 of the Budget and Accounts Act recognizes the effect of the fixed interruption of prescription with respect to the "peremptory notice of payment by the State" based on the general governing authority for the purpose of finance by the public, special effect such as the power of self-execution in order to secure the effectiveness of the State's intention with respect to the obligations arising from the fiscal order, which is an administrative act ordering the public to act, omission, acceptance, or payment, the above "peremptory notice of payment" also constitutes a procedure under the name of the State's fiscal power, and thus, the above provision does not apply to the plaintiff's claims for payment of unjust enrichment.

2. The judgment of this Court

Article 98 of the Budget and Accounts Act (hereinafter referred to as the "Act") provides that the notice of payment made by the State under the provisions of statutes shall have the effect of interrupting prescription, and it shall be an exception to the effect of interrupting prescription under the Civil Act. In a case where a notice of payment is given through the forms and procedures prescribed in Article 51 of the Act and Article 26 of the Enforcement Decree of the Budget and Accounts Act with respect to a claim of the State for the payment of money, the cause of the claim shall take effect among the cases under the private law (see Supreme Court en banc Decision 76Da1720, Feb. 8, 197).

This is because, in order for the State to collect taxes and other revenues, Article 98 of the Act provides a public procedure in accordance with the provisions of Article 51 of the Act and Article 26 of the Enforcement Decree of the Act, and the procedure is a public procedure in accordance with the laws and regulations, and there are clear procedures and forms such as the Act and the Enforcement Decree. Thus, the notice of payment made by the State according to its formal accuracy recognizes the effect of interrupting prescription different from that of a peremptory notice that does not limit a certain form of private person. As long as the reason for recognizing the effect of interrupting prescription is that the notice of payment made by the State is based on the above form and procedure, it is reasonable to interpret that the cause of the right is under the private law and the cause of the right is effective, and Article 98 of the Act clearly provides that the notice of payment in accordance with the provisions of the Act and the Enforcement Decree of the Act and the Act and the Act and the Act and the Act and the Act and subordinate statutes.

Nevertheless, the court below rejected the Plaintiff’s assertion of the interruption of prescription on the ground that the interruption of prescription by a notice of payment under Article 98 of the Act applies only to the claim for payment under public law in the country where the same takes place by an order of dismissal, and that it does not apply to the claim for payment under private law in the country. In so doing, the court below erred by misapprehending the legal principles of the interruption of prescription under Article 98 of the Act, which affected the conclusion of the judgment

3. Conclusion

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

Justices Shin Shin-chul (Presiding Justice)