2017Da265556 Objection

A

K&C Co., Ltd.

Jeonju District Court Decision 2016Na12086 Decided September 7, 2017

February 13, 2018

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

The grounds of appeal are examined.

1. The plaintiff's joint and several liability claim against the plaintiff was extinguished due to the expiration of the statute of limitations, and the defendant's act of requesting the defendant to issue a certificate of debt to the defendant in order for the principal debtor B to apply for bankruptcy and exemption from liability constitutes an approval of debt as a ground for interruption of the statute of limitations, and the interruption of the statute of limitations has effect on the plaintiff.

The court below rejected the defendant's defense, based on the following facts: (a) the facts that B submitted a written request for issuance of a debt certificate to the defendant through an agent in order to file an application for bankruptcy and immunity and the fact that B issued a debt certificate to B; (b) the debtor who intends to file an application for bankruptcy and immunity need to submit to the court materials certifying the actual obligation after investigating and verifying the particulars of the claim with potential creditors in order to prevent any harm caused by omission of the claim; (b) the debtor who prepares an application for bankruptcy and immunity in accordance with the practice of issuing a debt certificate at the preparation stage for bankruptcy and immunity, without any particular awareness, prepares and submits an application for issuance of a debt certificate to the financial institution; (c) the debtor who intends to file an application for bankruptcy and immunity from the financial institution; and (d) the agent stated the "personal bankruptcy" in the column for its use while preparing a written request for issuance of a debt certificate; and thus, (c) the defendant also cannot be deemed as having indicated that B bears the obligation to the defendant.

2. However, it is difficult to accept the above determination by the lower court.

The so-called concept of recognition of an obligation, which serves as the cause of interruption of extinctive prescription, is established when an obligor, who is a party to the extinctive prescription benefit, expresses to the other party that he/she would lose his/her claim due to the completion of extinctive prescription that he/she is aware of the other party’s right or his/her obligation, and does not require any intent of effect unlike the waiver of the benefit of prescription after the completion of prescription (see Supreme Court Decision 2011Da2155

If B requested the issuance of a certificate of liability to the Defendant, as acknowledged by the court below, if B can be deemed as an act indicating that it was the Defendant’s obligation or the Defendant’s right, even if B requested the issuance of a certificate of liability to exempt the obligation, the above request constitutes a debt acceptance which serves as the ground for the interruption of extinctive prescription.

Therefore, the lower court should have deliberated whether the act requested for the issuance of the above certificate of liability can be deemed as an act indicating the Defendant’s obligation or the Defendant’s right, and determined whether the said act constitutes the recognition of liability which constitutes the ground for interruption of extinctive prescription.

Nevertheless, the lower court erred by misapprehending the legal doctrine on the debt acceptance, which constitutes a ground for interrupting extinctive prescription, thereby failing to exhaust all necessary deliberations, solely on the grounds indicated in its reasoning.

3. Therefore, without examining the remaining grounds of appeal, 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 Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in