(영문) 대법원 2015.4.9.선고 2014다234155 판결

1. The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principles of the Civil Act. As such, in a case where an obligor reliances on the right holder after the completion of extinctive prescription, and an obligee exercises his/her right within a considerable period of time that could expect the exercise of the right, the obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of rights against the principle of good faith. In this case, barring any special circumstance, an obligee shall exercise his/her right within a short period of time pursuant to the Civil Act’s suspension of prescription. In a case where an extension of the period is inevitable due to a very special circumstance in an individual case, the period may not exceed three years long, even if the State received a request to ascertain the truth of the victim, who is subject to the application of the Framework Act on the Settlement of History and Reconciliation (hereinafter referred to as the “Act on Settlement of History”) or ex officio, and thus, the State’s assertion that the period of ex officio investigation constitutes an abuse of rights within 20.

2. citing the reasoning of the first instance judgment, the lower court: (a) acknowledged the fact that: (b) on March 30, 2010, the Korean History Committee filed the instant lawsuit against the Defendant before the lapse of three years from the date of the truth-finding decision; (c) on October 15, 1948 before the establishment of the Government of the Republic of Korea on August 15, 1948, five persons who were five to five to five to five to five to five to five to not file an application for the truth-finding; and (d) on the grounds that the Defendant was related to the Daegu 10-gu 10-month case from the establishment of the Government of the Republic of Korea to the Korean War; and (b) found that the Plaintiff, a deceased’s bereaved family member, filed the instant lawsuit against the Defendant before the lapse of three years from the date of the fact-finding decision; and (c) granted the Plaintiff the same attitude as the victim not to invoke the statute of limitations.

As long as the defendant exercised his right within a considerable period, it was determined that the defendant's assertion for the completion of extinctive prescription constitutes an abuse of rights against the good faith principle.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

The record reveals that there was no request from the bereaved family to verify the truth of the deceased and the Committee did not initiate ex officio an investigation, and according to the record of the fact-finding report, the deceased was merely stated only in the accompanying materials as a person who has made a sacrifice for the 1948 Daegu 10-year Incident from the establishment of the government in 1948 to the Korean War, and was not included in the text of the truth-finding decision. Furthermore, there was no evidence to find that there was a truth-finding decision on the deceased.

Therefore, in this case where there is no special reason to deem that there is a reason to believe that the plaintiff would not assert the extinguishment of right due to the completion of extinctive prescription, the defendant's objection to the plaintiff's claim of this case cannot be allowed against the principle of trust and good faith.

Nevertheless, the court below held that the defendant's defense of extinctive prescription constitutes an abuse of rights against the principle of good faith. In so doing, the court below erred by misapprehending the legal principles on the abuse of rights against extinctive prescription defense, thereby affecting the

4. Therefore, without further proceeding to decide on the grounds of appeal, the part against the defendant 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