Method of approving the debt as a ground for interruption of extinctive prescription

Article 168 subparag. 3, and Article 177 of the Civil Act

Supreme Court Decision 2006Da22852 Decided September 22, 2006, Supreme Court Decision 2009Da99105 Decided April 29, 2010 (Gong2010Sang, 998)

Korea Credit Guarantee Fund (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

Defendant

Jeonju District Court Decision 2012Na6489 Decided June 4, 2013

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below held that the non-party borrowed KRW 50,00,000 from the defendant on May 20, 1997 without the due date and set the due date on March 30, 2002 when each of the instant mortgage and collateral security was established against the defendant, and thus, the debt of the instant loan extinguished by the prescription on March 30, 2012 when ten years have passed since the due date for the loan of this case was set at March 30, 202. The court below rejected the defense by the non-party on the grounds that there was no evidence supporting that the non-party approved the debt of the instant loan of this case before the expiration of the due date for the non-party's debt of the instant loan of this case, which was suspended by the non-party's approval of the debt of this case, the corresponding certificate (No. 6) is difficult to believe that the establishment of other evidence is not acceptable or it is difficult

2. However, we cannot accept the above determination by the court below for the following reasons.

A. Approval as a ground for interrupting extinctive prescription is established when an obligor who is a party to the benefit of prescription indicates that the obligor has a right to the obligor who is a party to the benefit of prescription or his/her agent is aware of the existence of the right. The method of indication does not require any form, and it is sufficient if the indication is made in such a way that the obligor is able to restore the obligor by means of the indication on the premise that the obligor is aware of the existence and amount of the obligation (see Supreme Court Decision 2006Da22852, Sept. 22, 2006, etc.).

B. According to the reasoning of the judgment below and the records, the non-party who is the debtor, issued a written statement of payment to the defendant around May 201, 2012, stating that "the non-party, who is the debtor, has paid off the debt to the defendant around May 2006, and the legal terms such as the extinctive prescription of the credit, are well known, but, in light of the nature of the credit, the obligation to pay off and have to pay off the debt, and received a certification and delivered the certificate (Evidence No. 6) to the defendant. The defendant asserted that the non-party approved the debt of this case by recognizing the existence of the debt of this case to the defendant by the statement in the preparatory document dated April 4, 2012. The non-party thereafter appeared as a witness in the court of the court below and expressed his/her intention to pay the debt of this case.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Nonparty, at the latest around February 21, 2012, approved the debt of the instant loan, and the Defendant, on February 21, 2012, issued a defense that the extinctive prescription was interrupted by accepting the debt of the instant loan.

C. Nevertheless, the court below rejected the defendant's defense of debt acceptance on the grounds as stated in its holding, and the judgment below erred by misapprehending the legal principles as to the approval of debt, which affected the conclusion of the judgment. The ground of appeal assigning this error is justified.

3. 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 Kim Shin (Presiding Justice)