[1] The starting point of counting the extinctive prescription for the installment repayment obligation under a special contract for loss of the benefit of formation right

[2] In a case where a creditor applied for an auction against a surety to guarantee another's property and the decision on commencement of auction was served on the debtor, whether the interruption of extinctive prescription becomes effective (affirmative)

[1] A special contract on the loss of time may be classified into two parts: (a) where, according to its contents, a certain cause occurs, the benefit of time is naturally forfeited and the due date comes due, without a creditor’s claim, etc. (a special contract on the loss of time limit); and (b) where, after a certain cause occurred, the obligee’s intent to act, such as the obligee’s notification or claim, etc., is to arrive after the obligee’s occurrence; and (c) where there exists a special contract on the loss of time limit, the special contract is for the benefit of the obligee, and even if there is a cause for the loss of time limit, the obligee may freely choose whether to claim the remainder of time limit in lump sum or to claim the payment in installments in the past. As such, in the case of a partial obligation under the special contract on the loss of time limit, the extinctive prescription shall run in sequence from each installment at the arrival of time limit, and in particular, from the time of the obligee expressed his intention to claim the full repayment of the remaining amount.

[2] In case where the creditor applied for a voluntary auction as the execution of the secured claim against the secured debt by the creditor, and the auction court made a decision to commence the auction, and where the decision is served on the debtor as an interested party in the auction procedure or the date of auction is notified, the debtor who receives the benefit of prescription is entitled to the interruption of the extinctive prescription of the secured debt in accordance with

[1] Articles 166(1), 387, and 388 of the Civil Act / [2] Articles 169 and 176 of the Civil Act

[1] Supreme Court Decision 86Meu2865 delivered on June 23, 1987 (Gong1987, 1229) / [2] Supreme Court Decision 89Meu32606 delivered on June 26, 1990 (Gong1990, 1572) Supreme Court Decision 93Da21477 delivered on January 11, 1994 (Gong1994, 683) Supreme Court Decision 94Da26097 delivered on November 25, 1994 (Gong195, 91)

Plaintiff (Attorney Lee Nam-he et al., Counsel for plaintiff-appellant)

Postal Food Co., Ltd. (Attorney Park Jae-young, Counsel for the plaintiff-appellant)

Busan District Court Decision 95Na11358 delivered on February 14, 1997

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, on April 30, 1982, the court below concluded a mortgage contract between the defendant and the non-party 1, who was living together with the plaintiff, on the part of the defendant, on the part of the non-party 1, who was born or will be borne by the defendant, on the loan certificate, note, payment certificate, and obligation on the bill or check, and on the part of other commercial transactions, on the part of the plaintiff, on the part of the Busan Jin-gu ( Address 1 omitted), with a maximum claim amount of 15 million won as against the non-party 1 and the defendant, and on the part of the non-party 1, the non-party 1, on the part of the non-party 2, who was jointly and severally liable to the defendant, on the part of the non-party 1, the non-party 3, who was the non-party 1, on the part of the non-party 1, on the part of the non-party 1, who had been jointly and severally liable with the defendant 1 and the defendant 1.

However, according to the records of this case, the defendant alleged that the non-party 3 had confirmed the balance of credit on May 31, 1986 to his defendant as 34,464,720 won (the preparatory document dated January 13, 1997 and the record No. 373) and that the non-party 1 had issued a promissory note with the same amount as the above joint repayment agreement on April 30, 192 (the preparatory document dated 23, 1996 and the records No. 230) with the court below's 19. The defendant asserted that the non-party 2 had filed an application for the auction of the above subject matter on May 31, 1986 with the court below's 19. The defendant's assertion that the non-party 1 had no effect on the expiration date of the prescription period of 19.6 billion won on the non-party 2's motion for auction of the same amount.

2. A special contract for the loss of time limits may be classified into two parts: (a) where, according to the contents, a certain cause occurs, the benefit of time is naturally forfeited and the due date comes, without a creditor’s claim, etc. (a special contract for the loss of time limits on condition of suspension); and (b) where, after a certain cause occurred, the obligee’s intent to act, such as notification or claim, etc., is to arrive only after the obligee’s occurrence; and (c) where there exists a special contract for the loss of time limits on formative basis, even if there is a cause for the loss of time limit, the special contract is for the benefit of the obligee, and even if there is a cause for the loss of time limit, the obligee may freely choose whether to claim the remaining total amount in lump sum or whether to claim the installment payment in the past. As such, even if there is a special contract for the loss of time limit, the extinctive prescription for each installment shall proceed in sequence from the time of arrival of the due date, and only if the obligee has expressed an intention to claim the full repayment of the remaining amount.

On the other hand, in case where a creditor has applied for a voluntary auction as an execution of the secured claim against a person who has pledged his property to secure another's obligation and the auction court has decided to commence the auction and served the decision on the debtor as an interested party in the auction procedure or notified the auction date, the debtor who receives the benefit of prescription shall be entitled to suspend the extinctive prescription of the secured claim in accordance with Article 176 of the Civil Act (see Supreme Court Decision 89Meu32606 delivered on June 26, 199

The special agreement on loss of benefit of this case shall be interpreted to have the nature of the so-called special agreement on loss of benefit of formation, in light of transaction relations between the parties and the circumstances leading to the joint repayment agreement as shown in the records, without demanding a creditor's demand and peremptory notice. Furthermore, as seen above, in this case, in light of the circumstance that the non-party 1 issued a promissory note with the payment date as of April 30, 1992, which is consistent with the date of the final installment payment agreement as of April 30, 1992, which is consistent with the above joint repayment agreement, the defendant reserved the intention to exercise all of the remaining debt amount as of April 30, 1992. Thus, if the non-party 1, the debtor, neglected the above installment payment, the defendant can claim for the loss of benefit of formation, the whole amount of the remaining debt or the remaining debt amount, or may claim for the remaining debt amount or select the remaining debt amount as of April 30, 1992 after the said joint repayment agreement.

Therefore, in the case of this case, even if Nonparty 1 did not perform the installment obligation under the above joint repayment agreement from the first installment payment date, it cannot be deemed that the extinctive prescription for the remaining total amount of the debt will run from that time.

Nevertheless, the court below determined that the whole amount of installment obligations under the above joint repayment agreement, which is the secured debt of the right to collateral security of this case, has already been extinguished by the prescription, without examining whether the procedure of extinctive prescription has been suspended since the above decision of auction was served at any time on the non-party 1, the debtor, by clarifying the purport of the defendant's request for auction, which had meaning the grounds for interruption of the extinctive prescription from April 1989, when the contract was concluded, with regard to the whole amount of installment obligations against the defendant of non-party 1 under the above joint repayment agreement. Thus, the court below erred by misapprehending the legal principles as to the starting point of the extinctive prescription and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and there is a ground for appeal pointing this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)