(a) The method of notifying a decision on commencing auction to have the effect of interrupting prescription against the debtor;

(b) Whether a notice of decision on commencing auction or that of auction date can be presumed to have been delivered to a debtor where a voluntary auction procedure by a financial institution’s application has been completed (negative)

A. An application for voluntary auction against a person who has pledged his/her property to secure another's obligation is a strong means of exercising the right to satisfy the secured claim, and there is no substantial reason to recognize any difference as the cause of interruption of the extinctive prescription in preparation for the seizure against the debtor himself/herself, the interruption of the extinctive prescription shall not be effective even for the parties to the act of interruption and other debtors who have the benefit of prescription. However, in order to prevent the debtor from causing unexpected disadvantages due to the interruption of the prescription, the interruption of prescription shall be notified to the debtor, but the effect of the interruption of prescription shall not be effective, thereby in harmony between the creditor and the debtor. As such, it is interpreted as the purport of Article 176 of the Civil Act recognizing an exception to the relative effect of the interruption of prescription as stipulated in Article 169 of the Civil Act, which recognizes the relative effect of the interruption of prescription as the purport of Article 169 of the Civil Act, so that the seizure may be known to

B. In the auction procedure under the Auction Act, which is initiated upon a request by a financial institution, the notice of decision on commencing auction or of auction date shall be deemed to have been delivered to the address indicated in the registry of the real estate at the time of application for auction pursuant to Article 3 of the Act on Special Measures for Delayed Loans by Financial Institutions, and in case where the address is not indicated in the registry of the real estate at the time of application for auction or the address is not reported to the court, it shall be served by public notice. Therefore, it is reasonable to deem that in the auction procedure, the notice of decision on commencing auction or of auction date cannot be presumed that it has been served

(a) Article 176(b) of the Civil Act : Article 3(a) of the Act on Special Measures for Delayed Loans of Financial Institutions; (b) Articles 165, 173, and 180 of the Civil Procedure Act;

[Defendant-Appellee] Plaintiff 1 and 3 others

Defendant 1 and four defendants et al., Counsel for the defendant-appellant

Seoul High Court Decision 88Na11614 delivered on January 23, 1989

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the other hand, the court below determined that the above 3-party 1 and the co-defendant 2 of the first instance court, Co-defendant 3, and Co-defendant 4 of the first instance court, etc., who were co-defendant 1 of the first instance court on May 25, 1976, were not jointly owned by the plaintiff for the purpose of securing obligations for loans under export support financing, and that the above 4-party 1 and 3412-meter (the address 1 omitted) of the first instance court's co-defendant 2 and the first instance court's co-defendant 3 of the first instance court's auction procedure for the above 5-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 4's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's damages.

2. In principle, the interruption of prescription is relative and thus, it affects only the parties to the act of interruption and their successors (Article 169 of the Civil Act). However, even if the seizure, provisional seizure, and provisional disposition does not against the person who received the benefit of prescription, if such person has been notified thereof, the interruption of prescription is exceptionally effective against the person who received the notification thereof (Article 176 of the Civil Act), and if an obligee has requested an auction to decide the commencement of auction and the auction date is set, and the auction date is served on the obligor who is an interested party in the auction procedure and notified the auction date, it shall be deemed that the seizure has become effective pursuant to Article 26(3) of the Auction Act, and that the interruption of the extinctive prescription as to the secured claim shall also affect the obligor under Article 176 of the Civil Act.

However, an application for voluntary auction against a person who has pledged his/her own property to secure another person's obligation is a strong means to exercise a right to satisfy the secured claim, and there is no substantial reason to recognize any difference as the reason for the interruption of extinctive prescription in comparison with the debtor himself/herself. Therefore, in cases where the seizure takes effect upon the commencement decision of auction, the interruption of prescription shall not be effective even for the party who has committed the act of interruption and the debtor who has received the benefit of prescription other than his/her successor, but in order to prevent the debtor from suffering unexpected disadvantages due to the interruption of prescription, it is interpreted to harmonize the interests between the creditor and the debtor by preventing the obligor from being notified of the interruption of prescription and by preventing the obligor from suffering unexpected disadvantages due to the interruption of prescription. As such, it is interpreted as the purport of Article 176 of the Civil Act recognizing an exception to the relative effect of the interruption of prescription as stipulated in Article 169 of the Civil Act, which recognizes that the seizure should be served by the delivery of the order of commencement of auction or notice of auction date to enable the debtor to know the seizure.

3. As determined by the court below, in order for the plaintiff to obtain repayment of the claim of this case against the above company around June 1981, the plaintiff applied for voluntary auction for the execution of the right to collateral security against the real estate owned by co-defendant 2 and co-defendant 3 of the first instance court, who is the surety's property, as the result, the decision to commence auction was made, and the auction procedure was in progress, and the plaintiff received dividends on December 10, 199, and the auction procedure was completed. However, in the auction procedure under the Auction Act, which is conducted upon the plaintiff's request, it shall be deemed that the notice of decision to commence auction or auction date was delivered to the address specified in the registry of the real estate at the time of applying for auction, and if the address is not indicated in the registry of the real estate or the address is not reported to the court, it shall be delivered by service by public notice. Thus, it shall be deemed that the auction procedure has been completed, but it is reasonable to deem that the decision to commence the auction procedure or notice was served to the related person by delivery by mail (delivery).

As above, the judgment of the court below with the purport is just, and it cannot be deemed that there was an error of law by misunderstanding the legal principles as to wrongful facts or service, which are contrary to the rules of evidence, which led to the notification of seizure and delivery of the burden of proof. Thus, there is no reason

The Supreme Court Decision 67Nu21 Decided March 19, 1968, which cited the theory as a precedent, is not appropriate to invoke this case as it differs from this case.

4. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)