(영문) 대법원 2018.11.29.선고 2017다217755 판결

According to the records, the lower court: (a) rendered a judgment on December 22, 2016, and served the original copy of the judgment to the Defendant’s residence; (b) served the original copy of the judgment by public notice on January 26, 2017, following the decision of service by public notice, which was not served due to the absence of closure; (c) and (d) filed a written appeal with the lower court on February 24, 2017, prior to the expiration of the period for filing an appeal from February 10, 2017. Therefore, the instant appeal filed by the Defendant is lawful; and (d) even if the Defendant was aware of the fact that the Defendant was sentenced prior to the occurrence of the period for filing an appeal by public notice, it cannot be deemed otherwise (see, e.g., Supreme Court Decision 2007Da52997, Dec. 1

2. As to the ground of appeal

A. According to Article 474 of the Civil Procedure Act and Article 165(2) of the Civil Act, even if a claim established in a payment order constitutes a short-term extinctive prescription, the period of extinctive prescription is extended to ten years (see Supreme Court Decision 2009Da39530, Sept. 24, 2009).

Meanwhile, Article 170(1) of the Civil Act provides, “A judicial claim shall have no effect of interrupting prescription in the event of dismissal, dismissal, or withdrawal of a lawsuit” on the premise that the judicial claim becomes a cause for interrupting prescription pursuant to Article 168 of the Civil Act; and Article 170(2) provides, “In the case of the preceding paragraph, if a judicial claim, intervention in bankruptcy proceedings, seizure, provisional seizure, or provisional disposition has been made within six months, the prescription shall be deemed interrupted by the first judicial claim;” and where a new judicial claim, etc. is made within a certain period, such as lack of the requirements for the first judicial claim, if there is a defect in the first judicial claim, then the interruption of prescription shall be retroactively recognized at the time of the first lawsuit (see Supreme Court Decision 2013Da94312, Feb. 27, 2014).”

B. The record reveals the following facts.

1) The defendant filed a payment order against the plaintiff on June 18, 2003, stating that "the defendant lent KRW 13 million to the plaintiff on June 18, 2003," and on August 2, 2004, the plaintiff applied for a payment order with the above court that "the plaintiff shall pay the defendant 13 million won and the damages for delay at the rate of 20% per annum from the day following the delivery of the original copy of the payment order to the day of complete payment (hereinafter "the payment order of this case", and the claim confirmed by the payment order of this case was delivered to the plaintiff on August 20, 204, and the payment order of this case became final and conclusive on September 4, 2004.

2) On August 1, 2014, the Defendant filed an application with the Plaintiff for a payment order seeking payment of the instant claim with the Daegu District Court 2014Guj6181 for the interruption of extinctive prescription of the instant claim. However, upon the Plaintiff’s filing of objection, the said case was brought to the Daegu District Court 2014Kadan5159 (hereinafter “first-related litigation”). On the ground that the Defendant was absent on two occasions on the date for pleading, the said lawsuit was concluded to be deemed to have been withdrawn on August 9, 2016.

3) On October 14, 2016, for the interruption of extinctive prescription of the instant claim, the Defendant filed a lawsuit against the Plaintiff seeking payment of the instant claim (hereinafter referred to as “second-related lawsuit”) with the Daegu District Court 2016Gaso52402. Examining the foregoing legal principles, the extinctive prescription of the instant claim was extended to 10 years from the time the instant payment order became final and conclusive, and the first-related lawsuit filed before the expiration of the extinctive prescription was terminated as the withdrawal order, but the second-related lawsuit was filed within 6 months from the time the first-related lawsuit was filed as the withdrawal order, and thus, the interruption of prescription becomes retroactively effective at the time of the first-related lawsuit, and thus, it is reasonable to deem that the extinctive prescription of the instant claim has not yet expired.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the first-related lawsuit, which expired as the withdrawal of the lawsuit.

The judgment below held that the extinctive prescription of the claim of this case was completed on the ground that the second related lawsuit was filed ten years after the payment order of this case became final and conclusive. In so doing, the judgment below erred by misapprehending the legal principles on the grounds for interruption of extinctive prescription, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, 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.