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(영문) 대법원 2017.10.26 2017다20111
근저당권설정등기말소
Text

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the statute of limitations was interrupted for the following reasons as to the Plaintiff’s assertion that: (a) the period of extinctive prescription has expired five years after the lapse of the period of extinctive prescription as to commercial claims occurred on or around December 10, 2008, when the claim for loans to D (hereinafter “D”) (hereinafter “D”) from the Dae-Ba Co., Ltd., Ltd., Ltd., the secured claim of the instant collateral security (hereinafter

① The Defendants: (a) transferred the above claim from a famous baby; and (b) completed the supplementary registration of partial transfer of each right to collateral security; (c) D prepared and delivered to Defendant C on January 20, 2010; and (d) February 26, 2012 to Defendant B a written agreement of non-payment of the acquired claim and a promissory note, respectively.

② This means that D, a debtor, has approved the existence of each acquisition claim against the Defendants before the expiration of the statute of limitations.

2. The gist of the allegation in the grounds of appeal as to this point is as follows: (a) from January 20, 2010 and February 26, 2012 as of March 14, 2017, the date of the closing of argument in the lower court, the period of extinctive prescription has elapsed five years in total; and (b) the lower court erred by misapprehending the legal doctrine as to the completion of extinctive prescription, failing to exhaust all necessary deliberations, and omitting judgment.

3. However, since the starting date of extinctive prescription falls under the specific facts constituting the legal requirements of the assertion of extinctive prescription or defense and the principle of pleading is applied, the court may not regard the starting date and another date as the starting date of extinctive prescription.

(see, e.g., Supreme Court Decisions 94Da35886, Aug. 25, 1995; 2006Da22852, 22869, Sept. 22, 2006). In this case, there is no evidence that the Plaintiff asserted as the initial date of the extinctive prescription of the Plaintiff’s claim on Jan. 20, 2010 and February 26, 2012, which is the time when each of the above causes of the debt approval occurred.

Ultimately, the grounds of appeal.

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