Whether the interruption of prescription by provisional seizure continues while the preservation of provisional seizure remains effective (affirmative)

Article 168 of the Civil Act provides for provisional seizure as a cause of interrupting prescription because the obligee can be deemed to have exercised the right by provisional seizure. As such, while the preservation of execution by provisional seizure continues to exist, the exercise of the right by the obligee of provisional seizure continues to exist. As such, the interruption of prescription by provisional seizure continues to exist while the preservation of execution by provisional seizure remains effective.

Article 168 Subparag. 2, Article 176, and Article 178(1) of the Civil Act

Supreme Court Decision 200Da11102 Delivered on April 25, 2000 (Gong2000Sang, 1290) Supreme Court Decision 2003Da26082 Delivered on October 23, 2003

Korea Deposit Insurance Corporation (Attorney Park Jong-ho, Counsel for the plaintiff-appellant)

Defendant

Changwon District Court Decision 2005Na7232 decided May 4, 2006

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

The court below rejected the plaintiff's claim for extinctive prescription as of August 30, 1997, on the ground that the prescription period of the loan claim of this case was suspended around the time of provisional attachment against the non-party's automobile owned by Korea Mutual Savings Bank (hereinafter referred to as "Korea Mutual Savings Bank"), on August 30, 1997, with the claim amounting to KRW 12,890,043 as the non-party's claim amount around August 197, the court below rejected the plaintiff's claim that the non-party's automobile owned by Korea Mutual Savings Bank applied for provisional attachment as of August 28, 1997 and completed provisional attachment registration on August 30, 1997 after the provisional attachment was registered as of August 30, 199.

However, the Supreme Court, Article 168 of the Civil Code, which provides a provisional seizure as a cause of interrupting prescription, is because the creditor can be deemed to have exercised his right by provisional seizure, and since the effect of the preservation of execution by provisional seizure continues to exist, the interruption of prescription by provisional seizure shall continue during the duration of the preservation of execution by provisional seizure (see Supreme Court Decisions 2000Da1102, Apr. 25, 2000; 2003Da26082, Oct. 23, 2003, etc.). Thus, the judgment of the court below is erroneous in the judgment contrary to the Supreme Court's precedents, and such illegality has influenced the judgment.

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 Ji-hyung (Presiding Justice)