Whether or not the interruption of extinctive prescription as to the preferential right can be asserted to the mortgagee of the ship with a preferential right by a judicial claim against the shipowner of the ship creditor.

The extinctive prescription of a lien shall not be asserted to the mortgagee of the ship with a lien as a judicial claim against the shipowner of the ship creditor.

Article 870(1) of the Commercial Act, Article 168 of the Civil Act

Korea Exchange Bank

Defendant 1 and four others, Defendant 1 et al., Counsel for the defendant-appellant-appellee

Daegu High Court Decision 76Na1250 delivered on January 18, 1978

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

The defendants' attorney's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, when the defendants claimed a lien on each of the above claims of the defendants around July 1973 and around August of the same year, and when the defendants claimed a lien on each of the above claims, the lien of the defendants under Article 870 (1) of the Commercial Act has been extinguished by prescription. However, the defendants asserted that the statute of limitations was interrupted by exercising each of the above claims on July 13, 1974 as the claim for repair expenses, including Busan District Court 74Gahap1069, the Busan District Court 74Gahap1069 on July 13, 1974. However, according to the record verification of the above case by the court below, it can be recognized that the defendants requested the performance of the above obligation and the claim for the maritime lien with respect to the non-party Cho Young Fishery Co., Ltd., which had been claimed in court by exercising the above claim, and thus, it cannot be viewed as a ground for interruption of prescription.

The Defendants, as a judicial claim against the above non-party Cho Young-dong Fishery Co., Ltd., could not assert the interruption of the extinctive prescription as to the instant lien against the Plaintiff, the mortgagee of the instant case, and thus, the lower court was justified in its conclusion that rejected the Defendants’ assertion as to the interruption of the statute of limitations as to the statute of limitations under Article 870 of the Commercial Act, and the arguments are without merit.

Therefore, all appeals are 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 Yu Tae-hee (Presiding Justice)