[1] Whether a special contract for loss of term interest is presumed to be a special contract for loss of term interest (affirmative)

[2] The starting point of counting the extinctive prescription in respect of the installment obligations under a special contract for loss of the benefit of formation right

[3] The case reversing the judgment of the court below which held that the extinctive prescription for the entire obligation from the one-time default of the installment shall run since the agreement for loss of time limit was deemed as a condition precedent

[1] A special contract for the loss of time-limit may be classified into two parts: (a) the special contract for the loss of time-limit under a condition precedent, which naturally causes the loss of time-limit and the arrival of time-period due to the occurrence of a certain cause, and (b) the special contract for the loss of time-limit maturity, which provides that the occurrence of time-period shall take place only through the obligee’s act, such as the obligee’s notice or claim after certain cause occurs; and (c) the special contract for the loss of time-limit may fall under any one of the two. However, in general, it is reasonable to presume the special contract for the loss of time-limit maturity as a special contract for the loss of time-limit under a condition precedent, unless there are special circumstances to see that it is a special

[2] Where there is a special contract for loss of right of formation, the special contract is for the benefit of creditor, and even if the cause for loss of right of time has occurred, the creditor may freely choose whether to claim the remainder of the whole amount in lump sum or to claim repayment in installments as previous. As such, in the case of installment obligations under the special contract for loss of right of time, even if one time has not been met, the extinctive prescription shall run from that time to that time for each installment, and in particular, from that time to that time only in cases where the creditor expresses his/her intention to claim the repayment of the remainder of the whole amount

[3] The case reversing the judgment of the court below which held that an agreement for loss of a term profit, which stipulates that a delay in the agreed performance obligation shall lose the benefit of the time and shall immediately pay the full amount of the obligation, shall be deemed loss of a term benefit under the condition precedent, and the extinctive prescription for the entire obligation from the first default of the installment obligation shall

[1] Articles 387 and 388 of the Civil Act / [2] Articles 166(1), 387, and 388 of the Civil Act / [3] Articles 166(1), 387, and 388 of the Civil Act

[1] [2] Supreme Court Decision 97Da12990 delivered on August 29, 1997 (Gong1997Ha, 2867)

Plaintiff (Attorney Lee Han-soo, Counsel for the plaintiff-appellant)

Daejeon Metropolitan City (Yak field Law Firm, Attorneys Park Jong-wing et al., Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2001Na10210 delivered on April 19, 2002

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

1. The court below held that on September 3, 1984, 1984, 680 won of a housing loan of 19 years had been extended to the plaintiff on the condition of 19 years (from October 5, 1984 to September 5, 2004) with a 19-year grace period for the above loan interest rate of 1 to 9.64 square meters owned by the plaintiff on the part of Daejeon-gu, Daejeon-gu, 2747, 98.64 square meters of its principal and interest for the above loan of 19-year grace period, 197.1, the defendant had an obligation of 9-year grace period for the above loan of 1 to 19-year grace period, and the defendant had an obligation of 9-year grace period for the above loan of 1 to 19-year grace period, 19-year grace period for the above loan of 1 to 19-year grace period, and the defendant had an obligation of 15-year grace period for the remaining interest rate.

2. A special contract for the loss of benefit of time may be classified into two parts: (a) a special contract for the loss of benefit of time under a condition precedent, which naturally causes the loss of benefit of time and the arrival of the due date, without requiring the obligee’s claim; and (b) a special contract for the loss of benefit of time, which requires the obligee’s intent to act, such as the obligee’s notice or claim after a certain cause occurs, may only occur; and (c) a special contract for the loss of benefit of time constitutes either one of the two parts of the above parties’ intent. However, it is reasonable to presume the special contract for the loss of benefit of time to be a special contract for the loss of benefit of time under a condition precedent, barring any special circumstance to deem the special contract for the loss of benefit of time to

In light of the agreement on loss of the benefit of this case, as determined by the court below, the agreement on loss of the benefit of this case should be deemed to be a special agreement on loss of the benefit of this case on the basis of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the formation of the contract.

In addition, where there is a special contract for loss of rights of formation, the special contract is for the benefit of creditor, and even if the cause for loss of rights of time has occurred, the creditor may freely choose whether to claim the remainder of the whole amount in lump sum or to claim payment in installments as previous. As such, even if there is a special contract for loss of rights of time one time for each installment, the extinctive prescription for the total amount of the obligation shall run from that time to that time, and in particular, from that time, the creditor has expressed his intention to claim the full amount of the remaining obligation, even if there is a default on each installment at the arrival of the due date for each installment (see Supreme Court Decision 97Da12990 delivered on August 29, 197). Thus, even in this case where there is a special contract for loss of rights of formation, even if the plaintiff failed to pay the agreed obligation on December 5, 1984, it cannot be deemed that the extinctive prescription for the total amount of obligation from that time has run unless the defendant

Nevertheless, the court below's determination that the extinctive prescription for the entire obligation from the one-time default of the obligation to be performed by deeming the contract for loss of the term interest of this case as a special contract for loss of the term interest of this case as a condition precedent is erroneous in the misunderstanding of legal principles as to the interpretation of the contract for loss of term interest, which affected the remaining judgment

3. 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.

Justices Son Ji-yol (Presiding Justice)