(영문) 대법원 2017.6.15.선고 2017다212118 판결

1. "The date on which the victim becomes aware of the damage and the perpetrator" under Article 766(1) of the Civil Act, which is the starting point of the short-term extinctive prescription of a claim for damages due to a tort, means the time when the victim, etc. actually and specifically, knows the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the victim, etc. is deemed to have actually and specifically recognized the facts requiring the tort should be reasonably acknowledged in consideration of various objective circumstances in individual cases and circumstances practically enabling the claim for damages (see Supreme Court Decision 2006Da30440, Apr. 24, 2008).

2. The lower court rejected the Defendant’s assertion that the statute of limitations has expired since the filing of the instant lawsuit on December 23, 2014, which was the date of the first instance judgment that recognized the Defendant’s damages liability for false or exaggerated advertising in the instant apartment contract, which was the date when the Plaintiff, the seller of the sales contract, entered into the instant apartment or at the latest, and the other parties filed in the instant apartment contract, on November 18, 201, which was the date when three years elapsed since November 18, 201, which was the date when the first instance court rendered the first instance judgment that the Defendant

3. However, the lower court’s determination is difficult to accept for the following reasons. (1) According to the reasoning of the lower judgment and the record, the following facts are acknowledged: (i) there is a place adjacent to the apartment complex in the Army A’s main place; (ii) the said unit is located near the said apartment complex to the east of the fourth line road; (iii) the unit fence is installed from the vicinity of the scheduled school site of the apartment complex to the middle of the apartment complex; (iv) the unit fence is located from the vicinity of the apartment complex to the middle of the apartment complex; and (v) the unit pen is located at a point of approximately 300 meters away from the door of the apartment site to the land; and (v) the unit ammunition is located at a point of approximately 70 meters away from the 105-dong right-hand side of the apartment site, (v) the apartment site’s car gate, etc. was marked as a neighboring park in the instant apartment site; and (v) the location of the unit or model of the construction site was not revealed.

③ At around 2007, the Defendant entered that the noise in the training of nearby military units may occur due to significant matters while publishing the invitation of occupants of the apartment of this case. The Defendant stated that the fire-fighting area in the complex can be installed in part of 104 dong, 105 dong, 106 dong, and 106 dong, according to the contents of the military unit’s consultation, and the same contents of the sales contract concluded between the Plaintiffs and the Defendant are stated in Article 16(3) of the same agreement.

④ On April 17, 2009, the strike Mayor issued a provisional use approval for the instant apartment on the instant apartment, and the Defendant set the period from April 18, 2009 to June 16, 2009 on the same day as the occupancy period and notified the buyers, including the Plaintiffs, to move into the instant apartment.

⑤ On May 19, 2009, some of the buyers of the instant apartment sales contract sent a content-certified mail to the Defendant on the ground that there is a military unit in the vicinity of the instant apartment, and sent a content-certified mail to the same effect on June 16, 2009. (2) Examining the above facts in accordance with the legal principles as seen earlier, the Plaintiffs: (a) in the instant case, at the latest around the time of moving into the instant apartment, indicated the false and exaggerated advertising act; (b) the fact that the Plaintiffs marked the place where the military unit was located in the instant apartment; and (c) the said selling advertisement was likely to mislead consumers of the fact that there is a nearby park; and (d) there is a risk that the said false and exaggerated advertising might interfere with consumers’ reasonable choice, and thus, it should be deemed that the extinctive prescription period from that time constitutes tort, and thus, the lower court erred by misapprehending the legal principles as to the starting point of the extinctive prescription period from that time, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.