In a case where a claim falling under short-term extinctive prescription is finalized by a payment order at the time when the former Civil Procedure Act enters into force, whether the period of extinctive prescription is extended to 10 years pursuant to Article 165(2) of the Civil Act

Article 165(1) and (2) of the Civil Act; Article 445 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002); Article 474 of the Civil Procedure Act; Article 3 of the Addenda (amended by Act No. 6626 of Jan. 26, 2002)

Plaintiff (Attorney Jeon Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Byung-hun, Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na107684 decided June 17, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 445 of the former Civil Procedure Act (amended by Act No. 4201, Jan. 13, 1990; Act No. 6626, Jan. 26, 2002; Act No. 6626) does not recognize the same effect as that of a final and conclusive judgment with respect to a final and conclusive payment order. Article 474 of the current Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002; Act No. 3 of the current Civil Procedure Act provides that "this Act shall apply to the matters arising before this Act enters into force: Provided, That this does not affect the validity of the previous provisions: Article 165 (2) of the former Civil Procedure Act does not apply to a payment order finalized at the time of the enforcement of the former Civil Procedure Act; therefore, even if the period of extinctive prescription becomes final and conclusive with respect to a short-term payment order falling under the former Civil Procedure Act, the original period of the claim shall not be extended for ten years prior to its expiration.

In full view of the admitted evidence, the court below determined that, on July 23, 199, the non-party 1 corporation and the non-party 2 transferred the above construction work price of 368,50,00 and the construction period from July 23, 199 to October 11, 199, the non-party 2 was not paid 28,50,000 out of the construction price of the non-party 2 corporation's claim against the non-party 1 and the non-party 2's claim against the non-party 1 corporation for the extended extinctive prescription period of 00,000,000 won for the above 10,000 won for 20,000 won for 20,000 won for 20,000 won for 10,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20.

According to the records, since it can be known that the defendant asserted that the starting point of the extinctive prescription period of the claim in this case was July 2003, the court below erred in calculating the extinctive prescription period on January 23, 2000 for which the payment order became final and conclusive as the starting point of the extinctive prescription period. However, even if the starting point of the extinctive prescription period was July 2003, since the plaintiff filed the lawsuit in this case after the lapse of three years from the starting point of the short-term extinctive prescription period of the claim in this case, the judgment below is justified in its conclusion in light of the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the extinctive prescription period of the claim in this case as alleged in the grounds of appeal.

2. The plaintiff sought payment of 118,00,000 won and damages for delay remaining after the payment order was finalized upon the claim of this case. Thus, the plaintiff's assertion in the grounds of appeal that there was omission in judgment as to the interest or damages for delay incurred before the payment from the principal portion of the construction cost already extinguished upon the payment of this case cannot be accepted.

3. The Plaintiff asserts that the extinctive prescription has been interrupted or that the benefit of extinctive prescription has been waived. However, this assertion is only asserted in the final appeal, and thus, it cannot be a legitimate ground for final appeal.

4. Therefore, the appeal is dismissed, and the 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 Kim Young-ran (Presiding Justice)