[1] Whether the interruption of extinctive prescription against another claim is effective where a creditor has multiple claims to achieve the same purpose (negative)

[2] The case reversing the judgment of the court below which held that the extinctive prescription of the right to claim damages due to the non-performance of the right to claim restitution of unjust enrichment was interrupted in a case where it was at issue whether the extinctive prescription of the right to claim restitution of unjust enrichment against Eul is interrupted by filing a lawsuit against Eul

[1] Article 168 of the Civil Code / [2] Article 168 of the Civil Code

[1] Supreme Court Decision 92Da50942 delivered on March 23, 1993 (Gong1993Sang, 1274) Supreme Court Decision 2002Da11441 delivered on June 14, 2002 (Gong2002Ha, 1658)

Credit Guarantee Fund

Industrial Bank of Korea (Law Firm Won, Attorneys Ansan-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na117586 decided September 16, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

In a case where a creditor has multiple claims in order to achieve the same purpose, the creditor can exercise his right at his option, but only one of them cannot be deemed to exercise another claim itself. Thus, barring any special circumstance, interruption of extinctive prescription for such other claims is not effective (see Supreme Court Decisions 92Da50942 delivered on March 23, 1993; 2002Da11441 delivered on June 14, 2002).

According to the records, the plaintiff filed a claim for restitution of unjust enrichment at the complaint, and added the claim for damages due to a tort in the petition for alteration of the purport and cause of the claim as of June 23, 2009, and did not claim for damages due to a nonperformance in the first instance trial. The first instance court dismissed both the claim for restitution of unjust enrichment and the claim for damages due to a tort in the appellate brief as of January 12, 2010. Further, the defendant added the claim for damages due to a nonperformance in the appellate brief as of February 3, 2010 to the ground for the appeal brief as of February 3, 2010. The defendant asserted that "the claim for damages due to a nonperformance in obligation has occurred on October 23, 2003 when the plaintiff fulfilled the guaranteed obligation." Accordingly, the defendant asserted that "the period of prescription expired on October 23, 2008 after five years after the lapse of the prescription period," and that the court below accepted the claim for damages due to a nonperformance on the date for pleading of extinctive prescription defense of the defendant.

Examining these facts in light of the legal principles as seen earlier, the extinctive prescription of the Plaintiff’s right to claim restitution of unjust enrichment against the Defendant cannot be interrupted on the ground that the Plaintiff filed a lawsuit against the Defendant to claim restitution of unjust enrichment.

Nevertheless, the lower court, based on the circumstances indicated in its reasoning, deemed that the extinctive prescription of the right to claim damages due to nonperformance was interrupted due to the filing of the instant lawsuit. In so doing, the lower court erred by misapprehending the legal doctrine on interruption of extinctive

In addition, according to the above facts, the court below violated the principle of pleading by judging the interruption of extinctive prescription not asserted by the plaintiff.

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)