(영문) 전주지방법원 2013.11.29.선고 2013가단3936 판결

1. The defendant's notary public against the plaintiffs shall be prohibited from compulsory execution based on OOO No. 203 No. 200 of 24 April 24, 2003 No. 2003 of OOO No. 200.

2. This Court approves a decision to suspend compulsory execution made on May 3, 2013 with respect to the case of applying for the suspension of compulsory execution No. 2013 Chicago 371.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

Purport of claim

The order is as set forth in the text.

Reasons

1. Basic facts

A. On the other hand, Plaintiff A borrowed money from “E” lending company (hereinafter “the instant lending company”) through “E” in around 2001, and thereafter borrowed money on several occasions.

B. The defendant has been operating the loan company of this case with F and D. On April 24, 2003, the notary public d ○○○○○○○○○○ in 2003, and the plaintiff A approved that the debt owed to his own defendant on October 23, 2002 is KRW 9,00,000 as of April 24, 2003, and paid the debt in full by April 23, 2003. The plaintiff B guaranteed the above debt of the plaintiff, and signed a notarial deed (hereinafter referred to as the "notarial deed of this case") to the effect that the execution is to be accepted immediately.

C. On August 2, 2005, Plaintiff A failed to repay the borrowed money from the instant lending company, and finally paid interest to the instant lending company.

[Ground of recognition] Facts without dispute, Gap 1, 4 evidence, Eul 3-1 to 25 evidence, and the purport of the body before oral argument

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

1) The instant notarial deed is not only null and void as it was made by a false power of attorney, but also null and void as it constitutes an unfair legal act under Article 104 of the Civil Act.

2) Even if not, a loan claim on the notarial deed of this case was completed 5 years after the date of the final payment of interest as commercial bonds.

3) Therefore, compulsory execution based on the notarial deed of this case shall be prohibited.

B. Determination

1) First, we examine the argument on the completion of extinctive prescription. Since a loan claim of a lending company is a commercial bond, the period of extinctive prescription is five years pursuant to Article 64 of the Commercial Act. However, since the period for payment of a loan claim on the instant notarial deed is April 23, 2003, the period for payment of the loan claim on the instant notarial deed is April 23, 2003, and even if counting from August 2, 2005, which was finally paid by an elevated Plaintiff A, the period for payment of the loan claim ought to be deemed to have expired on August 3, 2010 after five years from that date.

2) On October 2012, the Defendant asserts to the effect that the Plaintiffs agreed to repay the debt on the full-time basis for the adjustment of the amount of credit, and that the Plaintiffs renounced the debt or renounced the prescription benefits.

However, an obligor who is entitled to benefit of prescription may waive the benefit of prescription after the completion of the statute of limitations, but this is an expression of intent requiring ‘effective intent to not receive legal benefit due to the completion of the statute of limitations.’ In addition, the determination as to whether there exists an expression of intent to waive such benefit of prescription ought to be based on logical and empirical rules, and objectively and reasonably in accordance with the concept of social justice and equity, and common sense of society, by comprehensively examining the content, motive and circumstance of the act or expression of intent indicated, the purpose and genuine intent that the obligor intends to achieve through such declaration of intent, etc. (see, e.g., Supreme Court Decision 2011Da56187, Jul. 25, 2013).

According to the records on Gap evidence No. 4, it may be acknowledged that there was a dispute between the plaintiff Gap and the defendant as to how much the remaining debt amount remains at the defendant's assertion date. However, in light of the above legal principles, it is not sufficient to recognize that the plaintiffs renounced the prescription benefit without the plaintiffs' consent on the notarial deed of this case for which the prescription has been completed, and there is no other evidence to acknowledge it. The defendant's assertion is without merit.

3) Therefore, compulsory execution based on the notarial deed of this case shall be prohibited.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and this decision is delivered with the decision of the court below.