Whether the defense of extinctive prescription is subject to the judgment of the court only if the party so claims (affirmative), and in this case, whether the principle of pleading applies to what time limitation is (negative) / Whether the court may apply ex officio the extinctive prescription period under the Commercial Act in cases where the party asserts the extinctive prescription period under the Civil Act (affirmative)

In the civil procedure, the principle of pleading applies to the assertion and certification on the major facts that are the requirements for judgment on the legal effect of the occurrence, modification, or extinguishment of rights. Accordingly, the defense of extinctive prescription extinguishing a right is subject to the judgment of the court, only when the parties concerned have asserted in accordance with

However, in such a case, the argument on which time limitation is applied is not merely expressed an opinion on the interpretation or application of a law, rather than an argument on the facts that constitute the requirement that generates the legal effect of extinguishing the right. Such a argument is not subject to the principle of pleading, and thus the court may ex officio determine ex officio, without being bound by a party’s argument. Even where a party claims the time limitation period under the Civil Act,

Article 203 of the Civil Procedure Act, Article 162 of the Civil Act, Article 64 of the Commercial Act

Supreme Court Decision 2006Da70929, 70936 Decided March 27, 2008 Supreme Court Decision 2012Da68217 Decided February 15, 2013 (Gong2013Sang, 472)

[Judgment of the court below]

Defendant 1 and one other (Attorney Clinical-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 2015Na108688 Decided September 23, 2016

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Period and principle of pleading;

This part of the ground of appeal is that the Defendants asserted the ten-year extinctive prescription period under the Civil Act, and the court below violated the principle of pleading by applying the five-year extinctive prescription period under the Commercial Act.

In the civil procedure, the principle of pleading applies to the assertion and certification on the major facts that are the requirements for judgment on the legal effect of the occurrence, modification, or extinguishment of rights. Accordingly, the defense of extinctive prescription extinguishing a right is subject to the judgment of the court, only when the parties concerned have asserted in accordance with

However, in such a case, the argument as to which period of prescription is applied is not merely expressed an opinion on the interpretation or application of a law, rather than an argument on the facts that constitute the requirement that generates the legal effect of extinguishing the right. Such an argument is not subject to the principle of pleading, and thus, a court may render ex officio determination without being bound by a party’s argument (see, e.g., Supreme Court Decision 2006Da70929, 70936, Mar. 27, 2008). In a case where a party claims a period of extinctive prescription under the Civil Act, the court may ex officio apply

2. Extinctive prescription period for claim for land price;

① The lower court recognized that the Plaintiff jointly operated the business of constructing and selling a pent-type multi-family house in the business site of the Taean-gun, Taean-gun, Chungcheongnam-gun, Chungcheongnam-do, by entering into an agreement on business agreement with the Seoan Development Co., Ltd. (hereinafter “Seo-gun”) and jointly operating the business of constructing and selling the pent-type multi-family house.

In light of the reasoning of the lower judgment and the record, comprehensively taking into account the agreement between the Plaintiff and the Western Development, its purpose, the role performed by the Plaintiff according to the agreement, the contents of the sales contract concluded with the Defendants, etc., the Plaintiff may be deemed to have sold the said land to the Defendants for the housing site development and sale business jointly operated by the Defendants. Therefore, the Plaintiff’s claim for the purchase price against the Defendants constitutes a claim for a commercial activity under Article 64 of the Commercial Act, and the commercial extinctive prescription is applicable to the claim. The lower court’s determination to the same purport is justifiable and did not err by misapprehending the

3. The extinctive prescription period for claims on the site preparation cost;

The lower court determined that the short-term extinctive prescription period of three years applies because the Plaintiff’s claim for the cost of site creation corresponds to “claim against the contractor’s construction work” under Article 163 subparag. 3 of the Civil Act. In light of the content of the agreement on the cost of site creation, the Plaintiff’s status, and the method of calculating the cost of site creation, etc. cited by the lower court, the Plaintiff’s claim for the cost of site creation is a contractor’s claim for construction. Therefore, the lower court did not err by misapprehending the legal doctrine on

4. Abandonment of prescription benefits, approval of obligations, etc.;

The Plaintiff asserted that: (a) there was an agreement with Defendant 1 to change the payment date of the purchase price; (b) the Defendants renounced the benefit of extinctive prescription as to the obligation to pay the purchase price or the site development cost; or (c) the progress of extinctive prescription was suspended by approving the debt. The lower court determined that the Plaintiff’s allegation was insufficient solely on the following grounds: (a) on July 28, 2004 and April 19, 201, the Nonparty, Defendant 1’s wife, completed the registration of transfer of ownership or equity ownership as to part of the instant land; and (b) on April 19, 2010, the fact that Defendant 2 completed the registration of transfer of ownership as to part of the instant land to Defendant 2.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the starting point of

5. Whether the principle of good faith is violated and abuse of rights

Although the Plaintiff asserted that the statute of limitations defense by the Defendants constitutes an abuse of rights or a violation of the good faith principle, the lower court rejected the said assertion on the grounds that it was difficult to deem that there were circumstances, such as that the Defendants, prior to the completion of the statute of limitations, committed an act to believe that the Plaintiff’s exercise of rights

In light of the relevant legal principles and records, the above determination by the lower court is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the good faith or abuse of rights.

6. Conclusion

The Plaintiff’s appeal is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)