[1] The point at which the interruption of prescription by seizure is terminated (i.e., when the compulsory execution procedure is terminated), and whether the same applies to cases where the registration of a decision to commence auction still remains without the procedure of requesting the cancellation registration (affirmative)

[2] The order of judging formal evidence and substantial probative value in documentary evidence, and the method of recognizing the authenticity of the disposal document

[3] The matters to be examined when determining the credibility of a witness's testimony where the authenticity of a private document is recognized by witness's testimony

[1] Articles 175 and 178(1) of the Civil Act; Article 651 of the former Civil Procedure Act (wholly amended by Act No. 6626 of Jan. 26, 2002) (see Article 141 of the current Civil Execution Act) / [2] Articles 202 and 357 of the Civil Procedure Act / [3] Articles 202 and 357 of the Civil Procedure Act

[2] Supreme Court Decision 96Da50520 Decided April 11, 1997 (Gong1997Sang, 143), Supreme Court Decision 201Da9655 Decided May 26, 201 / [3] Supreme Court Decision 98Da57198 Decided April 9, 199 (Gong199Sang, 849)

Plaintiff (Law Firm Sejong, Attorneys Park Jong-hee et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 2013Na7896 decided June 12, 2014

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 (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the interruption of prescription by an attachment

The effect of interruption of prescription by seizure shall continue until the compulsory execution procedure is completed, and in case of suspension of prescription, the prescription which has passed until such interruption shall not be included, but shall newly run the prescription period from the time when the cause of interruption ceases to exist (Article 178(1) of the Civil Act).

On October 22, 1991, the court below rejected the plaintiff's assertion that the statute of limitations has expired since the non-party 1 loaned the loan amount of KRW 40 million to the non-party 2 on June 22, 1993, and the registration of the entry of the non-party 1 on September 24, 1993 was completed with respect to the real estate in this case owned by the plaintiff, and the registration of the non-party 1 was completed with respect to the real estate in this case on September 24, 1993. The court below rejected the plaintiff's assertion that the statute of limitations expired since the debt in this case was interrupted by seizure as the registration of the decision of commencement of auction was completed, and as long as the registration of the entry of the above decision of commencement of auction was not cancelled.

However, according to the records, the above voluntary auction procedure by the application of Nonparty 1 can be known the fact that the record was destroyed as of the expiration of the preservation period after the termination of May 16, 194. Thus, in light of the above legal principles, the interruption of prescription by the seizure of the above auction decision shall continue until May 16, 1994 when the compulsory execution procedure concerning the real estate of this case was completed, and the new prescription period shall continue from that time on the termination of the cause of suspension. Article 651 of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002) provides that when the request for auction has been completed without permission of successful bid, the court shall entrust the registrar with the cancellation of the entry in the auction decision, and therefore, it shall not be deemed that there still existed the registration of the request for cancellation without the procedure.

Therefore, the judgment below erred by misapprehending the legal principles on the interruption of extinctive prescription, and thus, the ground of appeal assigning this error is with merit.

2. As to the postponement of the repayment period

Since documentary evidence is a method of proving facts requiring proof by using the author's intent expressed in the document as evidence, it should first be revealed that the document was made by the author's will alleged by the author. If formal evidence is recognized, it cannot be used as evidence. Only after formal evidence is recognized, the substantial probative value of the author's intent should be determined by how much it is useful as evidence of facts requiring proof. In particular, considering the fact that a disposal document should recognize the existence and content of the expression of intent in accordance with the contents of the document unless it is clear and acceptable if it is recognized that the contents of the statement are denied if it is true, and there is no counter-proof that it is acceptable, it should be careful in recognizing the authenticity of the disposal document (see, e.g., Supreme Court Decisions 9Da50520, Apr. 11, 1997; 201Da9655, May 26, 2011).

The court below rejected the Plaintiff’s assertion that, on April 12, 1994, Nonparty 1 prepared the instant loan agreement (No. 11-1) with Nonparty 3 and Nonparty 2 on behalf of the Plaintiff and Nonparty 2, stating that “the period of repayment of the instant loan shall be postponed within one month after the cancellation of senior mortgage on the instant real estate,” and that, on the Plaintiff’s assertion that there was no fact that Nonparty 1 prepared the instant loan agreement or granted Nonparty 3 the authority to prepare the instant loan agreement as an agent, the court below rejected Nonparty 3’s right of representation on the ground that Nonparty 1’s testimony had been recognized.

However, according to the records, the defendant's assertion was requested by the plaintiff and the non-party 2 to resolve the issue of voluntary auction requested by the plaintiff and the non-party 3 to whom the plaintiff and the non-party 2 agreed to postpone the repayment period as in the contents of the loan agreement of this case on their behalf. The non-party 3 attached resident registration certificates of the plaintiff and the non-party 2 to prove the power of representation in preparing the loan agreement of this case. The plaintiff and the non-party 2 had the seal seal of the plaintiff and the non-party 2 without the seal affixed the seal of the plaintiff and the non-party 2. The plaintiff's name was erroneously affixed to the "non-party 4" due to mistake in the process. Thus, it is difficult to view that the seal affixed to the loan agreement of this case was not made by the seals or signatures of the plaintiff and the

Furthermore, as to whether Nonparty 3 was authorized to prepare the loan agreement in this case on behalf of the Plaintiff and Nonparty 2, it is difficult to expect fair and objective testimony as the party who lent the loan agreement in this case to the Defendant on February 15, 2012, and Nonparty 1, the Plaintiff, Nonparty 2, and Nonparty 3 prepared the loan agreement in this case on behalf of the Plaintiff, Nonparty 2, and Nonparty 3 on behalf of Nonparty 2, and there is any circumstance in which the Plaintiff’s name was erroneous from Nonparty 1 and Nonparty 3, but it is difficult to view that the copy of the above resident registration certificate was delivered at the time of the drawing up of the loan agreement, such as Nonparty 1 and Nonparty 3’s name was erroneous from the seal affixed on the loan agreement in this case. However, it is difficult to view that Nonparty 2 and Nonparty 3 did not have any other authority to write up the loan agreement in this case on behalf of the Plaintiff and Nonparty 3 on behalf of Nonparty 2, although Nonparty 2 and Nonparty 3 did not have any other authority to do so.

Therefore, the above judgment of the court below is erroneous in its judgment which affected the conclusion of the judgment in violation of the evidence law.

3. Conclusion

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 Lee In-bok (Presiding Justice)