[1] Whether the interruption of prescription by provisional seizure is effective even in cases where a provisional seizure procedure for corporeal movables has not commenced (negative)

[2] In a case where a lessee Gap filed a lawsuit claiming the return of the lease deposit against the lessor Eul at the expiration of 10 years from the expiration date of the lease contract period, the case holding that the statute of limitations does not cease to exist on the sole basis of the fact that the above lease deposit repayment obligation expired by the statute of limitations and Gap received the decision of provisional seizure for

[1] Article 168 of the Civil Code provides for provisional seizure as a cause of interrupting prescription because the creditor may be deemed to exercise his right by provisional seizure. Since the preservation of execution by provisional seizure remains effective, the interruption of prescription by provisional seizure shall continue until the preservation of execution by the creditor of provisional seizure remains effective. Therefore, in cases where a decision of provisional seizure of corporeal movables has been executed, the interruption of prescription by provisional seizure shall continue until the preservation of execution by provisional seizure remains effective. However, in cases where the execution procedure by provisional seizure of corporeal movables has not been commenced, the interruption of prescription by provisional seizure shall continue until the preservation of execution by provisional seizure remains effective. However, in cases where the execution procedure by provisional seizure of corporeal movables has not been commenced, there is no interruption of prescription, and

[2] In a case where the lessee A filed a lawsuit against the lessor B seeking the return of the lease deposit at the expiration of ten years from the expiration date of the lease contract period, the case holding that the prescription period does not cease to exist as long as the claim for the return of the lease deposit against the lessor B was extinguished by prescription, and the provisional attachment order against the corporeal movables owned by Party B was issued by Party B

[1] Article 168 of the Civil Code / [2] Article 168 of the Civil Code

[1] Supreme Court Decision 2000Da11102 decided Apr. 25, 2000 (Gong2000Sang, 1290) Supreme Court Decision 2006Da32781 decided Jul. 27, 2006 (Gong2006Ha, 1508)

Plaintiff

Defendant 1 and one other

Suwon District Court Decision 2009Na37135 decided November 18, 2010

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

Article 168 of the Civil Act provides for provisional seizure as a cause of interrupting prescription because it may be deemed that the creditor exercised the right by provisional seizure. While the preservation of execution by provisional seizure remains effective, the interruption of prescription by provisional seizure shall continue until the creditor by provisional seizure continues until the preservation of execution by provisional seizure is effective (see Supreme Court Decisions 2000Da1102, Apr. 25, 2000; 2006Da32781, Jul. 27, 2006, etc.). Therefore, where a provisional seizure order by provisional seizure was executed, the interruption of prescription by provisional seizure continues until the preservation of execution by provisional seizure remains effective. However, where the interruption of prescription has not commenced unless the execution procedure by provisional seizure for corporeal movables has commenced, and where the execution procedure by provisional seizure is impossible due to the absence of movable properties, the prescription period by provisional seizure shall continue to run anew from the time when the execution procedure is completed.

According to the facts of the lower judgment and the evidence duly admitted by the lower court, the term of the instant lease agreement expires on January 10, 1996, and the Plaintiff resided in the instant building even after the said lease agreement was terminated on September 14, 1996; Defendant 1 is the lessor of the instant lease agreement; Defendant 2, as the actual owner of the instant building, was jointly and severally with Defendant 1, to bear the obligation to return the lease deposit to the Plaintiff; and the Plaintiff filed the instant lawsuit seeking the return of the lease deposit against the Defendants on March 12, 2009; on the other hand, on August 17, 1996, the Plaintiff was determined to provisionally seize the corporeal movables owned by the Defendants by taking the leased deposit return claim against the Defendants as the preserved right.

In light of the above facts in light of the legal principles as seen earlier, since the Plaintiff filed the instant lawsuit on March 12, 2009, which was the time when it was possible for the Plaintiff to claim the return of the lease deposit against the Defendants, ten years have elapsed since it was apparent that the period of the instant lease contract expired, the Defendant’s obligation to return the lease deposit to the Plaintiff was extinguished by the statute of limitations. The fact that the Plaintiff received the provisional seizure order for corporeal movables alone cannot be said to be interrupted.

Nevertheless, the court below accepted the plaintiff's claim on the premise that the interruption of prescription is suspended by the provisional seizure order on the condition that, upon a provisional seizure order on corporeal movables, the interruption of prescription becomes effective as a matter of course and that the provisional seizure order has been revoked, barring any circumstance. The court below erred by misapprehending the legal principles on the interruption of extinctive prescription due to provisional seizure, which affected the 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.

Justices Cha Han-sung (Presiding Justice)