[1] In a case where the principal obligation has not been completed but the obligor partly pays the principal obligation upon the expiration of the extinctive prescription period, whether the recognition of the principal obligation and the presumption of the waiver of the prescription benefit of the interest obligation (affirmative in principle), and the method of appropriation of performance in this case

[2] Where an obligor waives the benefit of prescription by discharging part of the obligation after the expiration of the statute of limitations, whether the new extinctive prescription is in progress from that time (affirmative)

[1] In a case where an obligor partly performs an obligation with respect to a principal obligation, even though the extinctive prescription has not yet expired, insofar as there is no dispute as to the amount of the principal obligation, it shall be implicitly approved as to the principal obligation, and it shall be presumed that the obligor has renounced its benefit with the knowledge of the completion of prescription. If the obligor’s performance does not extinguish the entire obligation and the parties did not designate the obligation appropriated for repayment, it shall be appropriated in accordance with the order of statutory appropriation for performance in accordance with Articles 479 and 47

[2] Where an obligor waives the benefit of prescription by discharging part of the obligation to the obligee after the expiration of the extinctive prescription, the extinctive prescription shall run anew from that time

[1] Articles 477 and 479 of the Civil Act / [2] Articles 166(1), 168 subparag. 3, and 184(1) of the Civil Act

[2] Supreme Court Decision 2009Da14340 decided July 9, 2009 (Gong2009Ha, 1287)

Plaintiff

Defendant

Busan District Court Decision 2012Na10185 Decided December 28, 2012

Of the judgment of the court below, the part of the judgment against the defendant ordering payment exceeding 18% per annum from June 21, 2002 to December 28, 2012, and 20% per annum from the next day to the day of complete payment is reversed, and the judgment of the court of first instance corresponding to the above part is revoked, and the plaintiff's claim corresponding to the above part is dismissed. The remaining appeal is dismissed. The 90% of the total litigation costs are assessed against the defendant, and the remainder is assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the assertion that the quasi-loan contract was acknowledged in violation of the principle of pleading

In accordance with the adopted evidence, the court below acknowledged the following facts: on June 20, 1995, the defendant drafted a certificate of loan with the loan amount of KRW 80,000,000 (hereinafter “certificate of loan”); on the loan certificate of this case, KRW 40,000 out of KRW 80,000,000 on the loan certificate of this case, the loan claim is the loan claim; the remainder of KRW 40,000,000 on the loan certificate is the credit payment claim between the plaintiff and the defendant made before preparing the certificate of loan of this case; on the other hand, the court below determined that the loan contract of this case under Article 605 of the Civil Act was concluded between the plaintiff and the defendant, thereby making the certificate of loan of this case effective.

Such determination by the court below is not erroneous in the misapprehension of the principle of pleading, as alleged in the grounds of appeal, since the fact-finding based on evidence was conducted.

2. As to the assertion of misapprehension of the legal principle as to waiver of extinctive prescription interest and appropriation of performance

In a case where an obligor partly performs an obligation with respect to an obligation of principal, even though the extinctive prescription has not yet expired, unless there is any dispute over the amount of the obligation, it shall be presumed that the obligor has implicitly approved the obligation of principal, and on the other hand, renounced its benefit with the knowledge of the completion of prescription. If the obligor’s performance does not extinguish the entire obligation and the parties did not designate the obligation appropriated for repayment, it shall be appropriated in accordance with the order of statutory appropriation for performance in accordance with Articles 479 and 477 of the Civil Act.

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below was just in holding that the defendant, on March 27, 2007, repaid KRW 25,000,000 to the plaintiff on March 27, 200, approved the principal obligation based on the loan certificate of this case, and that the extinctive prescription was waived, and that the above amount of KRW 25,00,000 from June 20, 195 to March 19, 197, was appropriated for the repayment of interest obligation based on the loan certificate of this case, and there was no error in the misapprehension of legal principles as to the waiver of the extinctive prescription interest and the appropriation of performance.

3. As to the assertion of misapprehension of legal principles as to the extinctive prescription of interest claim

A. As to the interest claim from June 20, 1995 to June 20, 2002

If an obligor waives the benefit of prescription by discharging part of the obligation to a creditor after the expiration of the extinctive prescription, the extinctive prescription will run anew from that time (see Supreme Court Decision 2009Da14340, Jul. 9, 2009).

According to the facts established by the court below and the facts admitted by the evidence admitted by the court below, the defendant prepared the loan certificate of this case as of June 20, 1995 with interest rate of 1.5% on the plaintiff on June 20, 1995, and maturity of 1.5% on June 20, 2002, and the defendant repaid KRW 25,00,000 to the plaintiff on March 27, 2007, and the lawsuit of this case was brought on April 28, 201.

In light of the aforementioned legal principles and the above facts, the Defendant paid part of the obligation based on the loan certificate of this case to the Plaintiff on March 27, 2007 and approved the principal obligation based on the loan certificate, and may be deemed to waive the benefit of extinctive prescription as to the interest obligation. However, the extinctive prescription period for the interest claim remaining after March 27, 2007, pursuant to Article 163(1) of the Civil Act, shall be deemed to have expired after the lapse of the three-year extinctive prescription period prior to the filing of the lawsuit of this case.

Nevertheless, the lower court rejected the defense of extinctive prescription on the ground that the instant lawsuit seeking payment was brought five years after the lapse of five years from March 27, 2007, which was the date of repayment, after appropriating the said amount of KRW 25,000,000 from June 20, 1995 to March 20, 197, based on the instant loan lending instrument.

In so doing, the court below erred by misapprehending the legal principles as to the period of extinctive prescription that is run again after waiver of the benefit of extinctive prescription with respect to the interest obligation, thereby affecting the conclusion of the judgment.

B. As to damages for delay from June 21, 2002

The damages for delay caused by delay of a pecuniary obligation is not interesting on the nature of the damages, and Article 64 of the Commercial Act provides for the five-year extinctive prescription as a claim arising from a commercial activity if the principal claim is a claim arising from a commercial activity (see Supreme Court Decisions 2006Da14691, Apr. 12, 2007; 2006Da2940, Mar. 14, 2008).

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in rejecting the defense of extinctive prescription as to damages for delay on the ground that the defendant paid KRW 25,00,000 to the plaintiff on March 27, 2007 and approved the obligation based on the loan certificate of this case, and the extinctive prescription has the effect of interrupting prescription as to damages for delay arising from June 21, 2002 where the extinctive prescription has not yet expired, and the lawsuit of this case was filed five years after the above repayment date, and there is no error of law as to the

4. Conclusion

If so, the part of the judgment of the court below regarding the interest of KRW 80,000 from March 21, 1997 to June 20, 2002 should be reversed. This part is sufficient for this court to directly render a judgment, and therefore, it shall be cut back pursuant to Article 437 subparagraph 1 of the Civil Procedure Act.

According to the facts duly established by the court below, the defendant is obligated to pay to the plaintiff 80,000,000 won and damages for delay calculated at the rate of 18% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from June 21, 2002, which is the date of the court below's decision that it is reasonable for the defendant to dispute about the scope of his obligation to pay to the plaintiff, until December 28, 2012, and the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

Therefore, the part of the judgment of the court below against the defendant ordering payment in excess of the above money shall be reversed, and the judgment of the court of first instance corresponding to the above reversal shall be revoked, and the defendant's remaining appeal shall be dismissed. The defendant shall bear 90% of the total costs of the lawsuit and the remainder shall be borne by the plaintiff respectively. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Poe-dae (Presiding Justice)