[1] The meaning and standard for determining “the day on which a person becomes aware of the damage or perpetrator” under Article 766(1) of the Civil Act

[2] Whether the application for payment order is included in “judicial claim” under Article 170(1) of the Civil Act (affirmative), and whether the statute of limitations shall be deemed interrupted when the application for payment order was filed again within six months after the rejection of the application (affirmative)

[3] In a case where Gap filed a complaint against Eul on suspicion of rape, etc., but the prosecutor made a disposition against Eul without suspicion, and instead Gap was convicted of non-guilty and convicted in the first instance trial, the appellate court and the final appeal court rendered a judgment of innocence, and subsequently Gap filed a claim for damages against Eul, but Gap filed a claim for damages within six months thereafter, the case affirming the judgment of the court below that the claim for damages should be deemed practically possible only when the judgment of not guilty becomes final and conclusive, on the ground that the claim for damages against Gap was made final and conclusive at the time of the judgment of not guilty, and the prescription period was interrupted on the date of first application for payment order under Article 170(2) of the Civil Act

[1] Article 766(1) of the Civil Act, which serves as the starting point for calculating the short-term extinctive prescription of a claim for damages due to a tort, means the time when the victim, etc. reasonably and specifically, recognized the facts requiring tort, such as the occurrence of damage, the existence of an illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the victim, etc., actually and specifically recognized the facts requiring the tort should be reasonably acknowledged by taking into account various objective circumstances in individual cases and taking into account the circumstances practically enabling the claim for damages.

[2] With respect to a claim aimed at paying a certain amount of money or other substitute or securities, the payment order is an order issued by a court, without resorting to common litigation procedures, with respect to simple and prompt implementation, and the procedure for a payment order is not an action for the final judgment, but can be seen as a special litigation procedure prepared by the Act in lieu of a suit for performance in order to have a creditor acquire an executive title simple and prompt. However, the ground for recognizing the interruption of prescription of a judicial claim is attributable to the fact that the right holder asserted a judicial right and expressed that he/she is not a locked person on his/her right, and that there was a situation other than that which is the basis of the prescription system, which cannot be common. In this regard, the application for a payment order is essentially different from the filing of a suit because the right holder claims the existence of the right and the realization of the lawsuit is essentially different from the filing of a lawsuit. Therefore, “judicial claim” as stipulated in Article 170(1) of the Civil Act is not limited to “the filing of a lawsuit for the final judgment,” and it is reasonable to view that the application again includes a judicial claim under Article 70(1).

[3] In a case where Gap filed a complaint against Eul on charges of rape, etc., but the prosecutor made a disposition that the prosecutor was not guilty, and Gap was convicted of non-guilty charges, and the court of first instance became final and conclusive after the judgment of innocence was rendered at the appellate court and the court of final appeal, and Gap filed a claim for damages against Eul, but Gap filed a claim for damages within six months from each other, the case affirming the judgment below which rejected Gap's claim for damages since it is difficult for Eul to receive damages against Eul even if it was guilty of a crime of adultery or non-guilty charges, and it is practically impossible for Gap to claim damages due to rape under such circumstances, and therefore, Gap's claim for damages is practically possible only when the judgment of innocence was final and conclusive, and as a result, Gap's claim for damages becomes final and conclusive at the time the judgment of innocence became final and conclusive, Gap's claim for damages was dismissed for the first time after the lapse of six months from the time the judgment of innocence became final and conclusive.

[1] Article 766(1) of the Civil Act / [2] Articles 168 and 170 of the Civil Act, Article 462 of the Civil Procedure Act / [3] Articles 168, 170, and 766(1) of the Civil Act, Article 462 of the Civil Procedure Act

[1] Supreme Court Decision 200Da22249 Decided June 28, 2002 (Gong2002Ha, 1777) Supreme Court Decision 2005Da65579 Decided January 18, 2008 (Gong2008Sang, 225) Supreme Court Decision 2010Da7577 Decided May 27, 2010 (Gong2010Ha, 1401)

Plaintiff

Defendant

Seoul High Court Decision 2010Na77141 decided June 1, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is justified that the court below recognized only consolation money for mental suffering from rape of February 21, 2000 among the plaintiff's claim of this case and dismissed the remainder of the claim, and there is no error in the misapprehension of legal principles, such as the lack of power of representation, omission of judgment, incomplete deliberation, and violation of the rules of evidence, as alleged in the ground for

2. Judgment on the Defendant’s grounds of appeal

A. As to the starting point of short-term extinctive prescription

Article 766(1) of the Civil Act, which is the starting date of the short-term extinctive prescription of a claim for damages due to a tort, "date on which the injured party becomes aware of the damage and the perpetrator" means the time when the injured party has reasonably and specifically recognized the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the proximate causal relation between the harmful act and the occurrence of the damage. Whether the injured party, etc. is deemed to have actually and specifically recognized the facts requiring the tort should be reasonably recognized in consideration of various objective circumstances in each individual case and circumstances practically enabling the claim for damages (see, e.g., Supreme Court Decision 200Da2249, Jun. 28, 2002).

According to the reasoning of the judgment below, the court below found the plaintiff's complaint based on its employed evidence that the defendant was guilty of rape, etc. on February 21, 2000, but the prosecutor made a disposition against the defendant without suspicion. Rather, on March 6, 2001, the plaintiff prosecuted the plaintiff without suspicion and under suspicion of adultery. On August 9, 2001, the court of first instance rendered a judgment of conviction in whole. On October 10, 2002, the court of appeal rendered a judgment of innocence as to the point between the two parties on February 21, 200 and the point of non-guilty on September 24, 200, and found it impossible for the plaintiff to claim compensation for damages from the plaintiff's non-guilty point on September 21, 204, since it was difficult for the plaintiff to claim compensation for damages from the non-guilty point on February 21, 2004, the court below found the plaintiff's non-guilty point on February 21, 2000.

In light of the above legal principles and records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the starting point of short-term extinctive prescription.

B. As to the allegation of suspending extinctive prescription

Article 170 (1) of the Civil Act provides that "In the case of the dismissal, dismissal or withdrawal of a lawsuit, the interruption of prescription shall not be effective in the case of the dismissal of a lawsuit, and in the case of the preceding paragraph, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure or provisional disposition is made within six months, the period of prescription shall be deemed to have been interrupted due to the first judicial claim," and as to whether a judicial claim as referred to in the above provision includes a request for payment order

An order for payment is a special litigation procedure prepared by the law in lieu of a suit for performance in order to have a creditor acquire a simple and swift manner, even though the procedure for a payment order is not a lawsuit for receiving a final judgment with respect to a claim aimed at paying a certain amount of money as a substitute or securities, by a court’s simple and prompt implementation upon a creditor’s request without resorting to common litigation procedures.

However, the grounds for recognizing the validity of the interruption of extinctive prescription for a judicial claim are due to the fact that the right holder is not a locked person on his/her right by asserting the right in court, and thereby, the fact that there was a fact-finding situation, which is the basis of the extinctive prescription system, and other circumstances that cannot be habitually used. In this regard, inasmuch as the right holder claims the existence of the right and demands the realization of the judicial procedure

Therefore, “judicial claim” under Article 170(1) of the Civil Act is not limited to “instigation of a lawsuit” to receive a final judgment, and it is reasonable to view that the holder of a right includes an application for a payment order seeking a judicial judgment in lieu of a performance lawsuit by a judicial institution. In addition, as long as an application for a payment order is deemed included in a judicial claim under Article 170 of the Civil Act, barring any special circumstance, if a lawsuit is instituted again within six months even if the application for a payment order is rejected, the period of prescription shall be deemed to have been interrupted when the initial application for a payment order was filed pursuant to Article 170(2) of the Civil Act.

According to the reasoning of the judgment below, the court below rejected the defendant's defense of the expiration of the extinctive prescription on September 21, 2007, on the ground that the plaintiff applied for a payment order for the payment of the damages of this case as Seoul Western District Court Decision 2007Da13455 on September 21, 2007, but the original copy of the payment order was not served on the defendant, and the plaintiff refused to comply with the correction order for address, and the plaintiff was dismissed on November 13, 2007, but the plaintiff filed the lawsuit of this case on March 18, 2008, which was before the lapse of six months thereafter, pursuant to Article 170 (2) of the Civil Act, the statute of limitations on rape of February 21, 200 shall be deemed to have been interrupted for the first time on September 21, 200.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the grounds for interrupting extinctive prescription

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)