Whether the extinctive prescription of the right to impose an indemnity is in progress in the proceeding of a revocation suit against the disposition of indemnity (affirmative)

The extinctive prescription shall not proceed from the time when the right becomes objectively created and is able to exercise the right, and only during the period when the right is unable to be exercised. In this context, the case where the right is unable to be exercised refers to the case where there is a legal obstacle to the exercise of the right. However, even when the lawsuit seeking revocation of the disposition imposing indemnity is in progress, the imposing authority may cancel the unlawful disposition by itself and make a legitimate disposition again by supplementing the defect, and thus, it cannot be deemed that there is a legal obstacle to the exercise of the right to impose indemnity. Thus, even during the period when the

Article 51 (1) of the State Property Act, Articles 96, 97, and 98 of the Budget and Accounts Act, Article 1 of the Administrative Litigation Act / [general administrative disposition]

Supreme Court en banc Decision 91Da32053 Decided March 31, 1992 (Gong1992, 1406) 85Nu688 Decided February 23, 198 (Gong1988, 956), Supreme Court Decision 86Nu269 Decided March 22, 198, (Gong198, 702), Supreme Court Decision 98Du19933 Decided September 8, 200 (Gong200Ha, 2123)

Plaintiff (Law Firm International, Attorney Ha Man-young, Counsel for the plaintiff-appellant)

Head of Busan District Court (Attorney Kim Tae-tae, Counsel for defendant-appellant)

Busan High Court Decision 2001Nu5255 delivered on May 2, 2003

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

The extinctive prescription shall not proceed only from the time when a right objectively arises and is able to exercise the right, and the case where a right cannot be exercised here refers to a case where there is a legal obstacle to the exercise of the right (see Supreme Court en banc Decision 91Da32053, Mar. 31, 1992). Even when a lawsuit seeking the revocation of a disposition imposing indemnity is in progress, the imposing authority may cancel the illegal disposition and make a new legitimate disposition by supplementing the defect, and thus, it does not constitute a case where there is a obstacle under the law in relation to the exercise of the right. Thus, even while a lawsuit seeking the revocation of the disposition is pending, the extinctive prescription of the imposing authority shall continue to proceed (see Supreme Court Decision 85Nu688, Feb. 23, 198; 86Nu269, Mar. 22, 198, etc.).

After compiling the evidence cited in the judgment, the court below acknowledged facts as stated in its holding, and found that the re-disposition of this case was made after the plaintiff's obligation to pay indemnity lapses due to the expiration of the extinctive prescription, and thus, it is reasonable to view that the interruption of extinctive prescription based on a payment notice does not lose effect even after the revocation of the disposition based on the payment notice, and once the suspension of the extinctive prescription is revoked, the extinctive prescription does not proceed during the period in which an appeal against the disposition by the payment notice is pending. Thus, while the lawsuit of this case seeking the cancellation of the disposition of this case was reversed and remanded by the Supreme Court and continues to the court below, while the lawsuit of this case seeking the cancellation of the disposition of this case was reversed and remanded by the Supreme Court, the extinctive prescription of this case was suspended, and as long as the defendant made the re-disposition of this case in accordance with the purport of the judgment of the judgment of remand, it was made within the lawful imposition period, and the plaintiff's right to possess and use the land of this case exceeding 65 square meters from June 23 to 198, 1996.

However, in light of the facts established by the court below, the extinctive prescription of the right to impose indemnity of this case was interrupted on February 13, 1997, but the period of extinctive prescription had run again from that time, and the lawsuit of this case seeking revocation of the disposition of this case was reversed and remanded by the Supreme Court and continued to exist at the court below after remanding, and thus, the re-disposition of this case on March 5, 2002, which was conducted on February 14, 2002, is unlawful because it is apparent that the extinctive prescription has run after the expiration of the extinctive prescription period.

Nevertheless, the court below rejected the Plaintiff’s assertion on the grounds stated in its reasoning, recognizing that the re-disposition of this case was lawful before the expiration of the extinctive prescription. In so doing, it erred by misapprehending the legal principles on the interruption of extinctive prescription, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, without examining the remaining grounds of appeal by the Plaintiff and the Defendant’s grounds of appeal, the part concerning the conjunctive claim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jae-sik (Presiding Justice)