[1] The starting point of the period of "six months" under Article 174 of the Civil Code in a case where the debtor, who was notified to perform the obligation, requested a deferment of performance to the creditor on the ground that it is necessary to examine the existence of performance obligation, etc.

[2] In a case where Gap filed a judicial claim against Eul insurance company after the lapse of six months from the time when Eul filed a claim for payment of insurance money, the case holding that the court below erred by misapprehending the legal principles and holding that the above claim for payment is effective as a peremptory notice on the ground that there was no evidence of Eul's non-payment notice without deliberation and determination, even though Eul company had not sought a postponement of performance

[1] Article 174 of the Civil Code / [2] Article 174 of the Civil Code

[1] Supreme Court Decision 94Da2436 Decided May 12, 1995 (Gong1995Sang, 2101) Supreme Court Decision 2005Da25632 Decided June 16, 2006 (Gong2006Ha, 1327) Supreme Court Decision 2010Da9467 Decided May 27, 2010

Plaintiff (Seoul General Law Firm, Attorneys Yoon Sang-il et al., Counsel for the plaintiff-appellant)

Han Lan Life Insurance Co., Ltd. (Law Firm Gael, Attorney Kim Jong-soo, Counsel for defendant-appellant)

ELa District Damage Insurance Co., Ltd. (Law Firm Insuaro, Attorneys Sung-ek et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na54633 decided March 14, 2012

The part of the lower judgment against Defendant Hansung Life Insurance Co., Ltd. is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed. Of the costs of appeal, the part arising between the Plaintiff and the Defendant El Han Life Insurance

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

1. Judgment on the Plaintiff’s grounds of appeal

According to the reasoning of the judgment below, the court below acknowledged the facts based on the employment evidence, and determined that on October 29, 2008, the plaintiff filed a claim for the payment of insurance money under each insurance contract attached to the judgment of the court below against Defendant LEL branch Co., Ltd. (hereinafter “Defendant LEL branch Co., Ltd.”), and that on December 12, 2008, Defendant LEL branch Co., Ltd. notified the refusal of payment of each of the above insurance money, and there was no evidence to find that the plaintiff filed a judicial claim under Article 174 of the Civil Act within six months from the time when the plaintiff was notified, and therefore, the court below determined that the plaintiff's claim for the above insurance money against Defendant LEL branch Co., Ltd. for the insurance money became invalid as a peremptory notice.

In light of the records, the above fact-finding and determination by the court below are just, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles as to the authority of a certified damage adjuster

2. Determination on the grounds of appeal by Defendant Han Korean Life Insurance Co., Ltd. (hereinafter “Defendant Han Korean Life Insurance”)

A. As to the ground of appeal as to whether a disaster occurred

Examining the reasoning of the judgment below in light of the records, it is reasonable to view that the occurrence of the instant disability suffered by the plaintiff in light of the circumstances acknowledged by the evidence of employment was a direct and important cause for the instant accident. Thus, the judgment of the court below that the instant accident constitutes an accident as a contingent accident under the insurance terms and conditions stipulated by the defendant Han Korean Life Insurance Act is just and acceptable. In so doing, it did not err by omitting the judgment or omitting the reasons as

B. As to the ground of appeal on the interruption of extinctive prescription

1) In a peremptory notice as a reason for interruption of prescription under Article 174 of the Civil Act, where an obligor who has received a peremptory notice to perform an obligation requests postponement of performance to the obligee on the ground that it is necessary to examine the existence of the obligation, etc., the effect of the peremptory notice shall be deemed to continue until the obligee receives a reply. Therefore, the period of six months under the same Article shall be interpreted to be calculated from the time when the obligee receives a reply from the obligor (see, e.g., Supreme Court Decisions 94Da24336, May 12, 1995; 2010Da9467, May 27, 2010).

2) On December 1, 2008, the lower court accepted the Plaintiff’s claim for the interruption of extinctive prescription as to the Defendant Hansung Life Insurance, on the ground that there was no evidence that the Plaintiff filed a claim for the payment of insurance money pursuant to the insurance contract listed in attached Table 1 of the lower judgment (hereinafter “each insurance money of this case”) with the Defendant Hansung Life Insurance, and that there was no evidence that the Defendant Han Korean Life Insurance notified the refusal of payment thereof.

3) However, it is difficult to accept such determination by the lower court for the following reasons.

In light of the above legal principles, unless there are special circumstances, the period of six months as stipulated in Article 174 of the Civil Act shall be calculated from the time when the peremptory notice is given to the obligee, unless the obligor, who received the peremptory notice, seeks a grace period for the performance of the obligation against the obligee. In this case, the burden of proving whether the obligor, who received the peremptory notice, sought a grace period for the performance of the obligation against the obligee

However, in light of the reasoning of the lower judgment and the record, there is no reason to view that the Defendant Hansung Life Insurance sought a grace period for the Plaintiff’s respective claims for the payment of insurance proceeds of this case. Thus, it is reasonable to view that the period of six months should be calculated from the time when the Plaintiff claims each of the above insurance proceeds to the Defendant Han Hansung Life Insurance.

4) Nevertheless, the lower court determined that the interruption of prescription is effective as a peremptory notice on the ground that there was no evidence that Defendant Han Hansung Life Insurance notified the Plaintiff of the refusal of payment of each of the above insurance claims without any deliberation and determination as to whether Defendant Hansung Life Insurance requested the suspension of payment of each of the above insurance claims. The lower court erred by misapprehending the legal doctrine on the interruption of prescription by peremptory notice and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant Hansung Life Insurance is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The costs of appeal by the plaintiff are dismissed, and the part arising between the plaintiff and the damage insurance between the defendant and the defendant ELGa is assessed against the losing party. It is so decided as

Justices Lee In-bok (Presiding Justice)