[1] In a case where a right holder has actively asserted a right in a lawsuit filed by a person who claims prescription against the plaintiff as the plaintiff and has actively asserted the right in the lawsuit and accepted it, whether the cause for interruption of prescription constitutes a judicial claim, which is a cause for interruption of prescription (affirmative)

[2] In a case where a judicial claim, etc. was made after several times of peremptory notice, the base point at which the interruption of prescription takes effect / Where a lawsuit is withdrawn after an action is brought, whether the interruption of prescription has the effect of interruption of prescription (negative in principle), and whether such a legal principle equally applies to a case where a lawsuit is dismissed

[1] A judicial claim stipulated as one of the causes interrupting prescription under Articles 168 subparag. 1 and 170(1) of the Civil Act includes not only the case where a right holder claims a right by lawsuit against a person who asserts extinctive prescription, but also the case where a person who asserts extinctive prescription claims the right to file a lawsuit by the plaintiff as the defendant and actively asserts his/her right in the lawsuit, and such lawsuit is accepted. Even if a lawsuit is terminated without determination as to his/her right claim for reasons such as dismissal or withdrawal of the lawsuit, etc., even in cases where the lawsuit is terminated without determination as to his/her right claim for reasons such as rejection of the lawsuit, etc., by applying mutatis mutandis Article 170(2) of the Civil Act to the case where another measure of interrupting prescription is withdrawn

[2] In a case where Article 174 of the Civil Act provides for the interruption of extinctive prescription several times and a judicial claim has been filed, the interruption of extinctive prescription shall not always take effect at all times, but shall take effect at the time of the first peremptory notice, as at the time of a judicial claim, etc., and where a judicial claim under Article 170 of the Civil Act has been withdrawn, the interruption of extinctive prescription shall not take effect unless a judicial claim is made again within six months from the date of the first peremptory notice. This legal principle applies likewise to a case in which the lawsuit has been dismissed.

[1] Articles 168 subparag. 1 and 170 of the Civil Act / [2] Articles 170 and 174 of the Civil Act

[1] Supreme Court en banc Decision 92Da47861 delivered on December 21, 1993 (Gong1994Sang, 487), Supreme Court Decision 2008Da42416, 42423 Decided August 26, 2010 (Gong2010Ha, 179) / [2] Supreme Court Decision 83Da437 delivered on July 12, 1983 (Gong1983, 1256), Supreme Court Decision 87Da237 delivered on December 22, 1987 (Gong1988, 343)

Nexpex Co., Ltd. (Law Firm Olochloro, Attorneys Kim-soo et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Gjin-o et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2018Nu11003 decided August 23, 2018

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court determined that the prior suit filed by the Plaintiff could be deemed as the Defendant’s responding suit by the Small and Medium Enterprise Information Promotion Agency (hereinafter “Technology Advancement Agency”) or the head thereof.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the subject of a judicial claim, which is the grounds for suspending extinctive prescription.

2. Regarding ground of appeal No. 2

A. A judicial claim as one of the causes interrupting prescription under Articles 168 subparag. 1 and 170(1) of the Civil Act includes not only the case where a right holder claims a right by lawsuit against a person who asserts extinctive prescription, but also the case where a person who claims extinctive prescription has actively asserted a right in the lawsuit and has accepted it as the defendant (see, e.g., Supreme Court en banc Decision 92Da47861, Dec. 21, 1993). Even in a case where a lawsuit has been terminated without determination as to his/her right claim on the grounds of rejection or withdrawal of the lawsuit, etc. in response by the defendant, who is the right holder, despite having asserted his/her right claim in the lawsuit, by analogy to Article 170(2) of the Civil Act, where the lawsuit is terminated within six months from that time, the interruption of prescription becomes retroactively effective if other measures such as a judicial claim have been withdrawn within six months from that time (see Supreme Court Decision 208Da42416, 42423, Aug. 26, 2010).

Meanwhile, in a case where a judicial claim, etc. has been repeatedly made while giving a peremptory notice under Article 174 of the Civil Act several times, the interruption of prescription takes effect at the time of peremptory notice, not at all times at the time of the first peremptory notice, but at the time of a judicial claim, etc. (see Supreme Court Decision 83Meu437, Jul. 12, 1983, etc.). In the interpretation of Article 170 of the Civil Act, in a case where a judicial claim is withdrawn, the interruption of prescription has no effect, unless a judicial claim is made again within six months from the date of the first peremptory notice, and it has the same effect as in a case where the lawsuit has been rejected (see Supreme Court Decision 87Meu2337, Dec. 22, 1987). Such a legal principle likewise applies.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On April 18, 2008, the Plaintiff entered into an agreement with the Technology Advancement Institute on the Support Project for Production Facilities (hereinafter “the instant agreement”) and accordingly received government subsidies from the Technology Advancement Institute (hereinafter “the instant subsidies”). According to Article 11(5) of the instant agreement, the Plaintiff shall immediately return the amount of subsidies when the instant agreement is terminated due to the Plaintiff’s cause attributable to the Plaintiff.

(2) On August 25, 2010, the Technology terminated the Convention against the Plaintiff as a business failure due to the Plaintiff’s responsibility. As such, the Technology notified the Plaintiff of the return of government subsidies already received as stipulated in Article 11(5) of the Convention (hereinafter “the recovery of government subsidies from the above notification”).

(3) On December 10, 2013, the Plaintiff filed a lawsuit seeking confirmation of invalidity of a disposition restricting the participation in the informatization support project ( Daejeon District Court Decision 2013Guhap101868), and filed a written response on January 21, 2014 on the premise that the request for the return of the instant subsidy was a disposition (hereinafter “first prior lawsuit”), and the president of the Technology Advancement Institute responded to the written response. However, on August 27, 2015, the Supreme Court determined that “the request for the return of the said subsidy shall be deemed as an expression of intent by an administrative agency on an equal status pursuant to a contract under the public law, and shall not be deemed as an administrative disposition as an exercise by an administrative agency on a superior position.” Furthermore, the lower court reversed the said request for the return of the subsidy and dismissed the said lawsuit (Seoul High Court Decision 2014Nu12022).

(4) On November 23, 2015, the Plaintiff filed a lawsuit against the Technology seeking confirmation of non-existence of government subsidies upon the instant request for the return of the instant subsidy (Seoul District Court Decision 2015Da226202, hereinafter “Seoul District Court Decision 2015Da226202”), and the Technology responded to the submission of a written answer on January 15, 2016. The Plaintiff who lost the first instance court filed an appeal. On November 18, 2016, the appellate court revoked the first judgment and transferred the instant case to the administration of the Daejeon District Court (Seoul District Court Decision 2016Na106108).

(5) On August 10, 2017, the Daejeon District Court, the administration of which was transferred, dismissed the lawsuit on the ground that “Technology is merely a process of performing state affairs entrusted by the Administrator of the Small and Medium Business Administration, and the subject to whom the instant subsidy was reverted, namely, the other party to whom the Plaintiff owes the obligation to return the instant subsidy, is the Republic of Korea ( Daejeon District Court 2016Guhap106048). The judgment became final and conclusive around that time.

(6) On August 28, 2017, the Plaintiff filed the instant lawsuit against the Defendant, which is a party suit seeking confirmation of the absence of the obligation to return the instant subsidy, and the Defendant filed a written answer on September 27, 2017.

C. The lower court determined that, in accordance with Article 170 of the Civil Act, the extinctive prescription of the instant obligation to return the instant subsidy was interrupted on January 21, 2014, and maintained the first instance court that dismissed the Plaintiff’s claim, based on the analogical application of Article 170 of the Civil Act, deeming that the instant obligation to return the subsidy was interrupted on January 21, 2014, prior to the completion of the extinctive prescription, and that the Plaintiff’s claim was rejected.

D. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) Following the termination of the instant agreement on August 25, 2010 by the Technology Advancement Institute on the ground of the Plaintiff’s cause attributable to the Plaintiff, the Defendant’s claim for the refund of the instant subsidy accrued on August 25, 2010 and the due date has arrived immediately after the occurrence of August 25, 2010. Therefore, the Defendant’s claim for the refund of the subsidy expired on August 25, 2015.

(2) The Director of the Technology Advancement Institute has actively asserted the right in response to the suit on January 21, 2014. However, since the first prior suit was dismissed on August 27, 2015 without determination as to the assertion of the right, only the effect of the second prior suit shall be recognized in the subsequent suit. Although the Technology Advancement Institute respondeds to the second prior suit on January 15, 2016, which was six months from the time the first prior suit was rejected, it was dismissed on August 10, 2017, the second prior suit was dismissed on August 10, 2017, the second prior suit was dismissed, and thus the second prior suit is also deemed to have only the effect of the second prior suit outside the trial. In other words, the interruption of prescription under Article 168 subparag. 1 of the Civil Act is not recognized in the second subsequent suit, and only the effect of the second prior suit outside the trial is recognized by analogy of Article 170(2) of the Civil

(3) Meanwhile, as the Defendant actively asserts the right by responding to the instant lawsuit on September 27, 2017, it may be deemed that the Defendant’s response lawsuit constitutes a judicial claim, but the extinctive prescription has already been completed. Moreover, it is not necessary to examine whether the Defendant’s response was given a peremptory notice or other measures of interrupting prescription within six months retroactively from September 27, 2017. This is because, even if six months have elapsed retroactively from September 27, 2017, the extinctive prescription has already been completed.

(4) Therefore, it is reasonable to view that the Defendant’s claim for the return of the instant subsidy expired by the expiration of the extinctive prescription on August 25, 2015.

E. Nevertheless, the lower court erred by misapprehending the legal doctrine on the validity of the responding claim, which is the ground for interrupting extinctive prescription, and thereby adversely affected the conclusion of the judgment, on the ground that the extinctive prescription of the instant claim for the refund of subsidies was retroactively interrupted on January 21, 2014. The allegation contained in the grounds of appeal on this point is

3. Conclusion

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.

Justices Kim Seon-soo (Presiding Justice)