Whether administrative litigation, etc. constitutes a judicial claim which is a cause interrupting extinctive prescription

The claim, which is the cause of interruption of prescription as stipulated in Article 168(1) of the Civil Act, refers to an act of exercising the right under the private law, which is the subject of prescription, in a judicial and extra-judicial manner. Thus, according to administrative litigation as a remedy under the public law, it cannot be said

Article 168(1) of the Civil Act

Korea

Han-il and eight others, Counsel for the defendant-appellant-gu, Counsel for the defendant-appellant

Seoul High Court Decision 78Na721,722 delivered on June 16, 1978

The appeal shall be dismissed. The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. We affirm the decision of the court below, and we cannot agree with such measures, and there is no misapprehension of the legal principles, such as theory of lawsuit, in light of the records that the court below ruled that the defendants cannot gain unjust benefits in the refund of customs duties as seen in this case.

2. As recognized by the lower court, if the Defendants transferred the right to claim the refund of customs duties to the Nonparty, signed and sealed the relevant documents, and allowed the Defendants to exercise the right to claim the refund of customs duties in the name of the Defendants, and if they committed a tort causing damage to the Plaintiff with unfairly excessive refund of customs duties, the Defendants are liable to compensate the Plaintiff for the damage as the nominal owner. Therefore, the lower court’s judgment that the Defendants did not have such liability is erroneous in the misapprehension of legal doctrine as to tort.

However, since the original judgment ruled that the damage claim has been extinguished appropriately by prescription due to family theory, the above illegality has no effect on the outcome of the trial.

In addition, Article 168(1) of the Civil Act, a claim, which is the cause of the interruption of prescription, refers to the act of exercising the right under the private law, which is the cause of the interruption of prescription, in a judicial and extra-judicial act. Thus, it shall be interpreted that the right is asserted through the civil procedure. Thus, the administrative litigation procedure, which is the remedy of the public law, seeking the cancellation, alteration, or nullification of an illegal administrative disposition, does not constitute a judicial claim. Thus, the public prosecution in a lawsuit administrative litigation cannot be seen as the cause of the interruption of prescription. Thus, the argument in this regard is not acceptable, and therefore, it is groundless to discuss.

Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Tae-won (Presiding Justice)