If the debtor's assertion to complete the statute of limitations is not permitted against the good faith principle.

Articles 2 and 162 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Rocs Co., Ltd. (Attorneys So Young-jin et al., Counsel for the defendant-appellant)

Busan Construction Co., Ltd. (Attorney Song Chang-ju, Counsel for the defendant-appellant)

Seoul High Court Decision 201Na60263 decided April 18, 2012

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. According to the facts and records acknowledged by the court below, the plaintiff is the business entity who sold the building of this case. The defendant is the contractor who supplied the building of this case to the plaintiff, and Article 30 of the contract between the plaintiff and the defendant shall repair all defects arising from the construction during the defect warranty period stipulated in the contract. The above defect warranty period is the same as the period stipulated in the Seoul Guarantee Insurance Co., Ltd., and the defendant's annual defect warranty liability period for the plaintiff's 1-year defect warranty against the defendant's 2-year defect warranty liability claim against the plaintiff. The plaintiff's representative representative's 9-year defect warranty liability claim against the plaintiff is not possible until March 29, 2006 for the second defect warranty and the defendant's 2-year defect warranty liability suit against the plaintiff's representative's 9-year defect warranty claim against the plaintiff's 20-year defect warranty claim against the plaintiff's representative representative's 9-year defect warranty claim against the plaintiff.

2. According to the above facts, the extinctive prescription of the right to claim damages in lieu of the repair of defects that occurred before the pre-use inspection among the defects existing in the building of this case shall begin to run from March 29, 2004 when the plaintiff could have exercised it against the defendant, that is, after the date when the defects in the building of this case occurred, and the period of extinctive prescription of the right to claim damages in lieu of the repair of defects in the first-year period of defect liability runs from March 29, 2005 when the period of defect liability expires. Thus, the right to claim damages in lieu of the repair of defects that occurred before the pre-use inspection shall begin to run from March 29, 2009 when the period of defect liability expires. Thus, the right to claim damages in lieu of the repair of defects that occurred before the pre-use inspection has expired from March 29,

However, since the exercise of the right of subrogation by a creditor belongs to the obligor, the interruption of the extinctive prescription due to the filing of a creditor subrogation lawsuit also results in an obligor (see Supreme Court Decision 2010Da80930, Oct. 13, 2011). A judicial claim has no effect of interrupting prescription in the case of dismissal, dismissal or withdrawal of a lawsuit, but in this case, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure or provisional disposition is made within six months, the period of prescription is deemed to have been interrupted due to the first judicial claim (Article 170 of the Civil Act). Therefore, as seen earlier, the plaintiff's right to claim damages against the defendant by filing a lawsuit against the defendant by subrogation of the plaintiff by the council of occupants' representatives. The plaintiff could have again taken measures within six months from July 17, 2009 where the said subrogation lawsuit was dismissed.

3. Meanwhile, the obligor’s exercise of the right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, in special cases where the obligor has made it impossible or considerably difficult for the obligee to exercise his right or interruption of prescription prior to the completion of the statute of limitations, has acted to make such measures unnecessary, has objectively obstructed the obligee from exercising his right, or the obligor has shown the same attitude that the obligor would not use the statute of limitations after the completion of the statute of limitations, or where the obligor has made the right holder trusted it, there is a great need to protect the obligee, and there is a great need to protect the obligee, and there are other creditors under the same conditions significantly unfair or unfair to refuse the performance of the obligation, it is not permissible for the obligor to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith (see Supreme Court Decision 2002Da32332, Oct. 25,

In light of the legal principles as seen earlier, the Plaintiff requested the Defendant to determine whether to file an appeal on the ground that the cost of repairing defects recognized as the responsibility of the Plaintiff would result in the Defendant’s liability in a lawsuit filed by the council of occupants’ representatives in a lawsuit claiming damages, and the Defendant determined whether to file an incidental appeal in response to such request, and the Defendant’s attorney at the first instance court appointed the Plaintiff’s attorney at the appellate court as the Plaintiff’s attorney. If the Plaintiff did not file an incidental appeal while the council of occupants’ representatives appealed against the Plaintiff, the part against the Plaintiff is not subject to the appellate court’s judgment, and the Plaintiff could no longer dispute with the Defendant, and thus, the Plaintiff could file a lawsuit seeking damages equivalent to the part against the Defendant against the Defendant, the contractor, after the judgment dismissing the Defendant’s lawsuit against the Defendant. However, under the Defendant’s initiative, the Plaintiff had the Plaintiff file an incidental appeal to the Defendant, thereby continuing to dispute the existence and scope of the final liability for damages against the Plaintiff’s council of occupants’ representatives, and under such circumstances, it

In light of the above circumstances, it is sufficient to view that the Defendant: (a) accepted the fact that the liability for damages caused by defects in the building of this case ultimately belongs to oneself; and (b) claimed such result to the Plaintiff, thereby making it impossible or considerably difficult for the Plaintiff to exercise the Plaintiff’s right or to extinctive prescription before the claim for damages against the Defendant under the instant contract expires; or (c) made the Plaintiff believe that separate measures for the interruption of prescription are unnecessary.

Nevertheless, the court below rejected the plaintiff's assertion that the defendant's defense of extinctive prescription cannot be permitted against the good faith principle. Thus, the court below erred by misapprehending the legal principles on extinctive prescription defense and the good faith principle, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

4. Therefore, without examining the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)