Whether Article 170(2) of the Civil Act applies to a lawsuit filed against a deceased person as the defendant (negative in principle), and whether the same applies to cases where the court rendered a judgment on the merits in excess of this (affirmative)

Article 170(1) of the Civil Act provides, “A judicial claim shall have no effect of interrupting prescription in the case of dismissal, dismissal or withdrawal of a lawsuit,” on the premise that a judicial claim becomes a cause for interrupting prescription pursuant to Article 168 of the Civil Act.” Article 170(2) provides, “In the case of the preceding paragraph, within six months, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure or provisional disposition is made within six months, the period of prescription shall be deemed to have been interrupted due to the first judicial claim.” In a case where there is a defect in the requirements for the first judicial claim, such as lack of the requirements for the first judicial claim, if

However, the judgment on the merits of the lawsuit brought against the deceased person as defendant is unlawful and invalid, and the judgment on the merits does not affect the inheritor, and such lawsuit by the obligee does not constitute an exercise of the right against the obligee’s obligor. Thus, barring special circumstances such as the case where the obligee’s correction of the indication of the party to be the defendant was made, it is reasonable to view that the interruption of prescription does not apply to Article 170(2) of the Civil Act due to the lack of the validity of interruption of prescription from the beginning of the lawsuit to the heir, and the same applies to the case where

Articles 168, 170(1) and (2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 200Da30578 decided April 26, 2002 (Gong2002Sang, 1239)

[Defendant-Appellee] K&C Co., Ltd. (Law Firm Cheong & Cheong, Attorneys Park Jae-ki et al., Counsel for defendant-appellee

Defendant

Seoul Central District Court Decision 2013Na30232 Decided October 23, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 170(1) of the Civil Act provides, “A judicial claim shall have no effect of interrupting prescription in the case of dismissal, dismissal or withdrawal of a lawsuit,” on the premise that a judicial claim becomes a cause for interrupting prescription pursuant to Article 168 of the Civil Act.” Article 170(2) provides, “In the case of the preceding paragraph, within six months, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure, or provisional disposition is made within six months, the prescription shall be deemed to have been interrupted due to the first judicial claim.” Thus, if there is a defect in the requirements for the first judicial claim, such as lack of the requirements for the first judicial claim, if a new judicial

However, the judgment on the merits of the lawsuit brought against the deceased person as defendant is unlawful and thus it does not affect the inheritor (see, e.g., Supreme Court Decision 2000Da30578, Apr. 26, 2002) and the obligee’s lawsuit does not constitute the exercise of the right against the obligee’s obligor. Thus, barring special circumstances, such as the case where the obligee’s correction of the indication of the party against the obligor is made, it is reasonable to deem that the interruption of prescription does not apply to the case of Article 170(2) of the Civil Act because the interruption of prescription from the beginning of the lawsuit does not become effective, and the same applies to the case where the court rendered a judgment on the merits in excess of it

According to the reasoning of the judgment below, the court below rejected the judgment of 200 on October 31, 2003 as follows: (a) on June 26, 2002, which ordered the payment of damages for delay of KRW 104,771,787 from the above court (hereinafter referred to as "related judgment"); (b) the above judgment became final and conclusive on July 27, 2002; (c) on the ground that the limited liability company specialized in asset-backed securitization transferred the above judgment to the plaintiff 1 on October 27, 2003, and notified the plaintiff 2 of the above assignment of the claim against the non-party 1 on November 27, 2003 at the time of the above judgment; and (d) on the ground that the non-party 1 transferred part of the pertinent judgment to the non-party 2 and the non-party 2, the heir of the above case, which became final and conclusive on October 18, 2008.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the validity of interruption of prescription.

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, the court below's rejection of the plaintiff's assertion that the period of prescription has been interrupted since the previous suit of this case constitutes "peremptory" under Article 174 of the Civil Act and its effect is maintained until September 7, 2012, which is the date of the judgment of the previous suit, and as long as the lawsuit of this case was instituted within 6 months from that time, there is no evidence to prove that the duplicate or original copy of the complaint of this case was delivered to the defendant, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation

3. As to the third ground for appeal

The court below rejected the Plaintiff’s assertion that Nonparty 4’s receipt of the duplicate of the previous suit of this case by Nonparty 4 on behalf of the Defendant and the Defendant did not respond to the contents of the previous suit of this case, and the Defendant’s assertion that the completion of extinctive prescription is contrary to the good faith principle, on behalf of the Defendant, that Nonparty 4 received the duplicate of the previous suit of this case on behalf of the Defendant, or that the Defendant knew of the contents of the previous suit of this case at the time of delivery of the duplicate of the complaint of this case.

In light of the relevant legal principles and records, the above measures of the court below are justified and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the violation of the principle of good faith in the defense of extinctive prescription, or by exceeding

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)