[1] Whether filing a criminal complaint in a criminal case constitutes a judicial claim, which is a ground for interrupting extinctive prescription (negative)

[2] Whether it constitutes a ground for interrupting extinctive prescription to acknowledge the existence of part of a debt to the investigation prosecutor in the course of interrogation of a criminal case filed by the creditor (negative)

[1] A criminal complaint filed by a creditor who is an investigative agency against the debtor's punishment cannot be deemed as a judicial claim, which is a ground for interrupting extinctive prescription under Article 168 subparagraph 1 of the Civil Act.

[2] Approval, which is the cause of interruption of the extinctive prescription under Article 168 subparagraph 3 of the Civil Act, is established by expressing that the debtor who is the party to the extinctive prescription benefit, is aware of the existence of the right to the person who will lose the right due to the completion of the prescription period, or his/her agent. Thus, even if the debtor made a statement to the investigation prosecutor when he/she was examined during the process of suspect interrogation, such statement does not constitute the approval of the obligation, which is the cause of interruption of the extinctive prescription

[1] Article 168 subparagraph 1 of the Civil Code / [2] Article 168 subparagraph 3 of the Civil Code

Kuo Construction (Attorney Goh Jeong-hee et al., Counsel for defendant-appellant)

In-depth (Attorney Seo-jin, Counsel for the defendant-appellant)

March 5, 1998

Busan District Court Decision 96Na16325 delivered on July 15, 1997

1. The plaintiff's appeal is dismissed.

2. The costs of appeal are assessed against the plaintiff.

The defendant shall pay to the plaintiff 211,411,221 won with the annual interest rate of 5% from March 23, 1991 to the date of the original judgment, and the interest rate of 25% per annum from the next day to the date of full payment.

The judgment of the court below is revoked. The defendant shall pay to the plaintiff 117,676,040 won with the annual interest rate of 5% from March 23, 1991 to the date of the decision of the court below, and the interest rate of 25% per annum from the next day to the date of full payment.

1. Basic facts

The following facts are either in dispute between the parties or in full view of Gap evidence No. 1, Gap evidence No. 2, Eul evidence No. 7, Eul evidence No. 9, Eul evidence No. 9, the court below's witness Kim Chang, and each testimony of credit, and there is no other counter-proof.

A. On January 15, 1990, the Plaintiff entered into a contract with the Defendant to newly construct the construction cost of KRW 500,000 (value added tax 25,00,000,000) in the name of the Non-Party Unemployment Co., Ltd., which is owned by the Defendant, on July 152, 192, the 2nd underground floor of steel reinforced concrete tanks, the 5th floor public bath and the 1,595 square meters per annum of neighborhood living facilities (hereinafter “the building in this case”).

B. Under the above contract, KRW 50,00,000 as advance payment within seven days from the contract date; KRW 50,000 in cash for the first time on May 30, 1990; KRW 60,000 as advance payment for the second time on sale of the building in Yongsandong; KRW 150,000 as advance payment for the first time, the fourth floor, and the fourth floor of the building in this case; KRW 150,000 as advance payment for the third time, and KRW 90,000 as advance payment for the fourth time, and KRW 9,00,000 as advance payment for the last three months after the completion; KRW 10,000,000 as advance payment for the second time within seven days after the completion inspection; KRW 25,000,000 as advance payment for the construction work price; and the Plaintiff did not complete the construction period from 30,000 to 9,000,090.

C. Around February 22, 1991, the Defendant provided that the construction cost unpaid between the Plaintiff and the Plaintiff shall be approximately KRW 200,000,00,000, and the remainder of the construction work shall be paid immediately after the completion inspection and provided as security to a financial institution, etc. (for a month presumption), and the payment of the remainder of the construction work shall be made after completion of the construction and other matters shall be based on the terms of the original contract, and the payment confirmation (Evidence 2) shall be made and delivered to the Plaintiff.

2. Assertion and determination

A. The assertion

On February 22, 1991, the Plaintiff asserted that the Defendant should pay to the Plaintiff KRW 211,411,211 of the remainder of the construction work remainder amount of KRW 200,00,000 and the additional construction cost of KRW 46,411,221, which is the remainder of KRW 46,411,211 (which is the remainder of KRW 117,676,040) as of February 22, 1991 (which is claimed in the first instance to reduce the unpaid amount to KRW 117,676,00) and that the Defendant had already expired even if the Plaintiff’s claim for the construction cost remains as much as the period expired.

B. Determination

Prior to the judgment on the plaintiff's assertion, the defendant's claim for remainder of construction work is "a claim against the contractor's construction work" under Article 163 subparagraph 3 of the Civil Act, and if it is not exercised for three years, the extinctive prescription expires unless it is exercised for three years (the plaintiff's claim for remainder of construction work as above is a claim based on the agreement between the plaintiff and the defendant on February 22, 1991, which is not a claim for three years under Article 163 subparagraph 3 of the Civil Act. However, even if the parties asserted a claim for the construction work of this case based on the agreement, the application of the above provision shall not be excluded unless the nature of the claim is changed (refer to Supreme Court Decision 94Da17185 delivered on October 14, 1994). According to the above facts, the payment period for remainder of construction work of this case has expired for the above 90-year period, and the defendant's claim for remainder of construction work payment of this case has been made within 15 months prior to 190-year 130 months.

On April 12, 1994, prior to the expiration of the above extinctive prescription period, the Plaintiff filed a complaint against the Defendant on charges of fraud, etc. against the Defendant in relation to the claim for the payment of the construction cost. Since the Defendant approved the Plaintiff’s obligation to pay the remainder of the construction cost in the course of the investigation, the above extinctive prescription period has been interrupted, the Plaintiff’s complaint against the Defendant on April 12, 1994, based on each of the evidence No. 4-3, No. 8-4, and No. 6, the Plaintiff’s complaint against the Defendant at the Busan District Public Prosecutor’s Office without any intent or ability to pay the remainder of the construction cost, but without any intention or ability to pay the remainder of the construction cost, by giving the Plaintiff a contract for construction work and receiving pecuniary benefits equivalent to 200 million won, which is the balance of the construction cost, cannot be seen as having been rejected by the Defendant’s investigative agency as the grounds for interruption of the extinctive prescription period, the Defendant’s right to the Defendant’s refusal of the extinctive prescription period.

3. Conclusion

Therefore, without further examination as to the plaintiff's assertion and the remainder of the defendant's defense (a set-off defense in lieu of payment claim, compensation for delay claim, and compensation for damages claim in lieu of defect repair), the plaintiff's claim in this case is dismissed as it is without merit. The judgment of the court below is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

March 19, 1998

Judges Jeon Jin-jin (Presiding Judge)