[1] The method of approval of debt as a ground for suspending extinctive prescription, and the standard for determining whether an implied approval of the damage liability exceeding the deposit amount is granted in a case where the damage is deposited for the victim in a criminal trial procedure

[2] The case reversing the judgment of the court below which recognized the validity of the approval of the full amount of the damage compensation liability on the ground that it cannot be deemed that the above deposit cannot be deemed as the recognition of the full amount of the damage compensation obligation exceeding the deposit money, in case where the deposit of KRW 10 million was made prior to the judgment of the court of first instance and the judgment of the appellate court, and the report of restriction on recovery of deposit was attached to the case

[1] Approval as a ground for interrupting extinctive prescription is established when an obligor, who is a party to the benefit of prescription, has indicated that he/she would lose his/her right due to the completion of extinctive prescription or his/her agent is aware of the existence of his/her right. The method of indication does not require any form, but does not explicitly explicitly. An implied recognition indication is sufficient if it is made in such a way that the obligor can have the other party against whom the indication is based on the premise that the obligor is aware of the existence and amount of the obligation. On the other hand, in a criminal trial proceeding, if the deposit was made for the victim, whether such deposit constitutes an implied approval of the liability for damages exceeding the deposit amount should be determined by taking into account the details of the deposit cause, focusing on the purpose and purpose of the deposit, whether disputes over the facts charged, the nature and amount of the damage liability recognized, the difference between the deposit amount and the deposit amount, and all other circumstances before and after the deposit.

[2] The case reversing the judgment of the court below which recognized the validity of approval of the total amount of compensation for damages on the ground that it cannot be deemed as having indicated the existence of a liability exceeding the deposit money at the time of each deposit, in case where the deposit of KRW 10 million was made before the judgment of the court of first instance and the judgment of the appellate court, and the report of restriction on recovery of deposit was attached to the case where the defendant did not indicate that the liability for compensation for mental damage was part of the compensation before the judgment of the court of first instance and the judgment of the appellate court, and the report of restriction on recovery of deposit was attached, in light of the fact that the liability for compensation for mental damage was the nature of the liability for payment of consolation money

[1] Article 168 subparag. 3 and Article 177 of the Civil Act / [2] Article 168 subparag. 3 and Article 177 of the Civil Act

[1] Supreme Court Decision 92Da947 decided Apr. 14, 1992 (Gong1992, 1595) Supreme Court Decision 2009Da99105 decided Apr. 29, 2010 (Gong2010Sang, 998)

Plaintiff

Defendant (Law Firm Echeon, Attorneys Yu Byung-ok et al., Counsel for defendant-appellant)

Seoul Northern District Court Decision 2009Na8350 decided April 9, 2010

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the records, the plaintiff's statement on August 12, 2009, including the claim that the defendant deposited the damages in a criminal trial proceeding at the third date for pleading of the court of first instance that the defendant approved the obligation to compensate for damages against the plaintiff. Thus, the ground of appeal that the court below violated the principle of pleading cannot be accepted.

2. Regarding ground of appeal No. 2

A. Approval as a ground for interrupting extinctive prescription is established when the obligor, who is a party to the benefit of prescription, expresses that he/she is aware of the existence of his/her right to the obligor or his/her agent, who is a party to the benefit of prescription. The method of indication does not require any form nor explicitly explicitly explicit. An implied approval indication is sufficient if it is performed in a way that allows the obligor to conjecte the obligor with the indication on the premise that the obligor is aware of the existence and amount of the obligation, through such indication (see, e.g., Supreme Court Decisions 92Da947, Apr. 14, 1992; 2009Da9105, Apr. 29, 2010). On the other hand, where a deposit is made for the victim in a criminal trial proceeding, whether such deposit constitutes an implied approval on the obligation to compensate for damages exceeding the deposit amount should be determined by comprehensively considering the details and purpose of the deposit, the details and purpose of the dispute over the deposit amount and amount of the obligation after the deposit.

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

1) From June 15, 2005 to October 19 of the same year, the Defendant: (a) committed several rapes or indecent acts by force; (b) received a total of KRW 880,00 in return for interruption of sexual intercourses; and (c) indicted the Defendant on the whole prosecuted facts, such as that there was no intimidation to make it impossible or considerably difficult to resist the victim at the time of rape or indecent acts by force; (c) placed a deposit of KRW 10 million in preparation for a case where the Defendant was found guilty on February 14, 2006, which was sentenced to the first instance judgment; and (d) the first instance court convicted the Defendant of all the above criminal facts and sentenced the Defendant to three years of imprisonment.

2) Even after filing an appeal against the above judgment, the Defendant continued to assert the Defendant’s assertion of innocence as to the whole of the crime. However, in preparation for the case where the Defendant was found guilty on August 17, 2006, the second judgment deposited KRW 10 million as damages in addition, and the second instance court accepted the Defendant’s assertion as to the crime of rape and the crime of indecent act by compulsion, and sentenced the Defendant not guilty, and sentenced the remainder of the charges to one year and six months.

3) The prosecutor appealed against the above judgment, and the Supreme Court reversed and remanded the above acquittal to the purport of conviction, and the appellate court dismissed the defendant's appeal and thereby the above judgment of the first instance became final and conclusive.

4) Meanwhile, the Defendant attached each of the above deposits with “written report on restriction on collection of deposit money”, and the content thereof is that the Defendant would not exercise the right to claim the recovery of deposit until the judgment of innocence becomes final and conclusive without the consent of the deposited person.

C. As above, the defendant deposited KRW 10 million prior to the pronouncement of the judgment of the court of first instance in preparation for a case where the defendant's conviction was found in the first instance trial, and even if the fact of deposit was found, there was no indication that it was part of the damage compensation, and even if the judgment of innocence was final and conclusive, a report of restriction on recovery of deposit money is attached to the report of the purport that the damage compensation can be recovered. In other words, in preparation for the judgment of innocence in the appellate trial, the defendant deposit additional KRW 10 million in preparation for the judgment of conviction, without an indication that it was a part of the damage compensation, and the defendant deposit KRW 10 million in advance, but was sentenced to a sentence in the first instance trial, and the defendant was sentenced to a penalty in the first instance trial, the defendant additionally deposited KRW 10 million in the appellate trial, and the defendant's obligation to pay the damage compensation has the nature of the defendant's obligation to pay the amount of the damage compensation for mental damage suffered by the plaintiff, it is difficult to view that the defendant's obligation to recognize the existence of deposit exceeds each deposit money.

D. Nevertheless, without examining the above circumstances, the lower court determined that the Defendant deposited the Plaintiff as the principal deposit and thereby the approval for the total amount of damages incurred by the Plaintiff becomes effective. In so doing, the lower court erred by misapprehending the legal doctrine on approval as the ground for interruption of extinctive prescription, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, 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 Ahn Dai-hee (Presiding Justice)