The method of approval of debt as grounds for interruption of extinctive prescription, the burden of proof, and the standard for determining whether an implied approval of liability for damages exceeding the deposit amount is granted in cases where the compensation for damages is deposited for a victim in criminal trial

Article 168 subparag. 3, and Article 177 of the Civil Act

Supreme Court Decision 2005Da64552 Decided November 29, 2007 (Gong2007Ha, 2001) Supreme Court Decision 2010Da36735 Decided September 30, 2010 (Gong2010Ha, 2001) (Gong2010Ha, 2001)

Plaintiff

Defendant (Law Firm Lee-il, Attorneys Seo Sung-won et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2014Na6706 decided October 30, 2014

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. Regarding the amount of the sale price payment

According to the reasoning of the first instance judgment cited by the lower judgment, the lower court recognized the fact that the Defendant received KRW 76 million from the Plaintiff on June 25, 2003, by integrating the results of examination of evidence and the purport of the entire pleadings as to the notice of reasons for non-prosecution submitted by the Plaintiff, and thus, did not err by omitting judgment or by failing to state the reasons for the judgment, contrary

2. On the extinction of obligation due to deposit

According to the reasoning of the judgment of the court below, the court below determined that the defendant's deposit cannot be deemed as the deposit of the full amount of the obligation, but it only becomes effective as a deposit of part, since the defendant had already settled disputes over the amount agreed upon between the plaintiff and the defendant at the time of deposit, and the defendant did not disclose that the full amount of the obligation was repaid.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the effect

3. As to the completion of extinctive prescription

Approval of an obligation as a ground for interruption of extinctive prescription shall be established by expressing the fact that an obligor, who is a party to the benefit of prescription, is aware of the existence of the right to the person who is to lose the right due to the completion of extinctive prescription. The method of indication does not require any form, and it is possible to do so in an implied manner without necessarily requiring an express statement. However, the implied recognition should be made in such a way that the obligor can make the other party who represents the indication of the obligation recognize the obligation of the obligor at least on the premise that the obligor is aware of the existence and amount of the obligation, and the fact that the obligor has approved the obligation of the obligor as a ground for interruption of extinctive prescription should be proved by the obligee who asserts it (see, e.g., Supreme Court Decisions 2004Da5959, Feb. 17, 2005; 2005Da64552, Nov. 29, 2007).

On the other hand, in a criminal trial proceeding, if a deposit of damages was made for a victim, whether such deposit constitutes an implied approval of the damage liability exceeding the deposit amount, shall be determined by taking into account all the circumstances before and after the deposit, focusing on the details of the cause of deposit stated in the deposit statement, including the details and purpose of the deposit, whether there is dispute over the facts charged, the nature and amount of the recognized damage liability, the difference between the amount of the damage liability and the amount of the deposit amount, and the amount before and after the deposit (see Supreme Court Decision 2010Da3

According to the reasoning of the lower judgment, the lower court acknowledged facts as indicated in its reasoning based on its adopted evidence, and determined that, since the Defendant deposited KRW 50 million to the Plaintiff around 2007, the extinctive prescription was suspended because it constitutes approval of the total amount of debt, and accordingly, the instant lawsuit was filed on November 29, 2013, which was ten years after the interruption of the extinctive prescription from the interruption of the extinctive prescription, and that the extinctive prescription was not completed

However, according to the reasoning of the judgment below and the records, the plaintiff was offered to the defendant, a licensed real estate agent, to purchase apartment sales tickets around June 2003, and received the payment of KRW 76 million to the defendant, and thereafter, the plaintiff was at issue of sale in lots due to disputes between the Si events and the agency for sale in lots. The plaintiff filed a complaint against the defendant and the agency for sale in lots on or around October 2006 due to the suspicion of fraudulent sale in lots. In the investigation procedure, the defendant was merely acting as a broker for sale in lots without knowing that the issue of sale in this case arises, and the defendant was at least 76 million won from the plaintiff but did not deposit it to the agency for sale in lots, and the defendant did not know that the amount of money to be settled between the agency for sale in lots was at least 76 million won and that it was not deposited to the agency for sale in lots, and the defendant was at around 2007 when the investigation procedure was in progress, indicating that the plaintiff was at least 200 won of the above investigation deposit.

In light of the above facts in light of the legal principles as seen earlier, the Defendant deposited part of the agreed amount requested by the Plaintiff for the purpose of criminal punishment exempted or mitigated, and it cannot be deemed that the Defendant indicated the Plaintiff that there was a debt exceeding the deposit money at the time by the deposit. Therefore, it cannot be deemed that the Defendant implicitly approved the obligation exceeding deposit money by the deposit.

Nevertheless, without examining the above circumstances, the lower court determined that the Defendant’s deposit of criminal agreement with the Plaintiff as the depositee, as the result, became effective as to the full debt owed to the Plaintiff, and thus, the extinctive prescription was interrupted. In so determining, the lower court erred by misapprehending the legal doctrine on approval as the ground for suspending extinctive prescription, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

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 Kim Yong-deok (Presiding Justice)