(영문) 대법원 2016.12.27.선고 2016다243696 판결

1. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s defense of extinctive prescription constitutes an abuse of rights against the principle of trust and good faith and thus, cannot be allowed, on the ground that it is reasonable to deem that the Defendant, before the expiration of the extinctive prescription period, was unable or considerably difficult to exercise the Plaintiff’s right, including the deceased’s bereaved family members, or that there was an objective reason that the bereaved family members and the Plaintiff could not exercise the right to claim damages of this case against the Defendant, and that the Defendant’s defense of extinctive prescription constitutes an abuse of rights against the principle of trust and good faith.

Then, the lower court, based on the evidence adopted by the first instance court and the lower court, notified F of the resolution to correct the deceased’s private life from “sicker’s death” on January 28, 2013, as to whether the plaintiffs exercised their claim for damages within a reasonable period of time, the KF’s claim against the Defendant for State compensation for the death of the deceased was filed on February 14, 2014, based on the following facts: (a) the KF’s first instance court and the KF’s response to the civil petition demanding restoration of their reputation; and (b) the KF’s notification to F, H, and I (hereinafter “F, etc.”) of the change of the deceased’s extinctive prescription period of time; (c) the Plaintiff did not appear to have known the deceased’s claim for damages from the deceased’s death on the part of winning or winning the above lawsuit; and (d) the Plaintiff could have known the deceased’s claim for the change of the deceased’s right within six months after the death of the deceased; and (d) determined as follows.

2. However, we cannot agree with the above determination by the court below for the following reasons.

The exercise of a debtor's right of defense on the ground of extinctive prescription is governed by the principles of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act, and thus, if there is an objective obstacle that the creditor is unable to exercise his/her right, then the debtor's assertion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 2009Da66969

Meanwhile, even if there exists an objective obstacle to the obligee’s exercise of rights within a reasonable period from the removal of such obstacle, the obligee may block the obligor’s defense of the statute of limitations. Here, whether there was an exercise of rights within a reasonable period of time should be determined by comprehensively taking into account the relationship between the obligee and the obligor, the content, motive, and circumstances of the obligor’s act given trust, the purpose and genuine intent of the obligor’s act, and whether there were any special circumstances where the obligor had to delay the obligee’s exercise of rights. However, denying the validity of the statute of limitations under the principle of trust and good faith should be limited to an exceptional limitation on the system of the statute of limitations, which takes the principle of trust and good faith to achieve legal stability, remedy for difficulties in proving evidence, and sanction for negligence in exercising his/her rights, barring any special circumstance. Therefore, even if it is inevitable to extend the statute of limitations for an individual case, the period of limitation should be limited to a short period of time as provided for in the Civil Act.

If it is unavoidable to extend a considerable period of time, it means a special circumstance where the creditor's exercise of the right to claim compensation has to be delayed for not less than 6 months, such as where there are circumstances that make it possible for the creditor to take appropriate measures to compensate for damages, such as making a lump sum compensation to the victims through legislation, etc., or implementing compensation procedures in response to the creditor's request for compensation, or where it is difficult for the creditor to claim compensation in lieu of civil damages pursuant to other Acts and subordinate statutes, at least until the completion of the procedure, by claiming compensation in lieu of civil damages.

The record reveals that in this case, the Plaintiff’s family member of the deceased was removed from the objective disability to claim for damages of this case by receiving the notification that the cause of the death of the deceased was the death of the deceased, not the death of the deceased, but the death of the deceased, but did not exercise the right to claim damages within six months equivalent to the suspension of prescription under the Civil Act. In this regard, there was no circumstance to expect that the Special Act on Compensation for Damage Caused by the Death was enacted or other individual measures were taken during military service of the deceased, and there was no circumstance that the Defendant’s personnel in charge of the Defendant showed the same attitude that he would take measures, such as compensation, against the plaintiff after notifying the F of the cause of death of the deceased.

Examining these facts in light of the legal principles as seen earlier, it is difficult to deem that there were special circumstances where the Plaintiff’s exercise of rights is forced to be delayed for not less than six months.

Nevertheless, the court below rejected the defendant's defense of extinctive prescription by deeming that there were special circumstances to delay the plaintiff's exercise of rights within a reasonable period of time. In such a case, the court below erred by misapprehending the legal principles on a reasonable period of time for which the creditor can exercise his rights, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.