(영문) 대법원 2018.11.29.선고 2018다261230 판결

1. The extinctive prescription shall not proceed from the time when an objective right arises and the exercise of such right is possible, and while the right is unable to be exercised, the term “the exercise of the right” refers to the case where there is a disability in the exercise of such right, for example, the non-performance of a given period or any non-performance of a condition, etc., and the claim determined by the due date becomes the starting point of the extinctive prescription (see, e.g., Supreme Court Decisions 80Da2626, Jan. 19, 1982; 2008Da15865, Sept. 9, 2010).

2. According to the reasoning of the lower judgment, the lower court determined that: (a) the Plaintiff’s instant loan claim was due on August 7, 2012 and the Plaintiff’s instant lawsuit was instituted on July 10, 2017 when five years have passed since the lawsuit was filed; and (b) the instant loan claim arising from commercial transactions had already expired before the lawsuit was filed.

However, according to the facts acknowledged by the lower court, since the maturity period of the instant loan claim is August 7, 2012, barring any special circumstance, the extinctive prescription of the said claim is calculated from that time, barring any special circumstance, and it is apparent in the record that the Plaintiff filed the instant lawsuit on July 10, 2017, for which five years have not passed since the Plaintiff’s claim was asserted by the Defendant. Therefore, the Plaintiff’s instant loan claim cannot be deemed to have expired yet.

Nevertheless, the lower court determined that the extinctive prescription of the instant loan claim has expired on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the determination contrary to the precedents of the neighboring court under Article 3 subparagraph 2 of the Trial of Small Claims Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. 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.