KON PON Co., Ltd. (Attorney Han-soo, Counsel for defendant-appellee)

Republic of Korea (Government Law Firm Corporation, Attorneys Gu-won)

July 12, 2018

Daejeon District Court Decision 2017Guhap104759 Decided April 4, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. It is confirmed that the Plaintiff’s president of the Technology Information Promotion Agency does not have any 45,642,000 won of the government subsidy repayment obligations based on the “Agreement on Production Facility Informatization Support for the Establishment of MFS/PP System” on April 8, 2008.

1. Quotation of the first instance judgment

The reasoning for this Court regarding this case is as follows, and it is stated in the reasoning of the judgment of the court of first instance except for the judgment as to the completion of the extinctive prescription claimed by the Plaintiff by using the following formula and emphasizing at the trial. Thus, this Court shall accept it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure

○ The 5th page 4 is called “request” (hereinafter referred to as “request for the return of the subsidy of this case”).

○○ Heading 6, 2, the Defendant’s “Defendant” in the 6th heading 2nd heading as the Plaintiff.

○ 6th page 3 is the Plaintiff’s “Plaintiff” as “Tex.”

○ 6, 5, 6, 11, 6, 6, 6, 7, 6, 7, 6, 7, 7, 7, 15, 8, 19, and 9, 14, 9, 15, and 16, respectively, shall be deemed to be the "Small and Medium Enterprise Information Promotion Agency".

○○ Heading 7, the Plaintiff’s “Plaintiff” in the first place is called “Tex.”

○○ Heading 7, 17, “Defendant” is called “Tex.”

○○ Heading 14, on the 9th page, the Defendant is referring to the Plaintiff.

2. Determination as to the completion of extinctive prescription

A. Relevant legal principles

1) The reason for the existence of the prescription system is that respect the permanent state of fact and protect the locked person above the right, and in particular, the latter is meaningful in the extinctive prescription, so if the right holder expressed that he is not a locked person above the right by claiming a judicial right, the interruption of prescription becomes a ground for the interruption of prescription (see, e.g., Supreme Court en banc Decision 91Da32053, Mar. 31, 1992; Supreme Court Decision 94Da13435, Jun. 30, 1995; etc.). If the subject matter of a lawsuit is substantially similar to the subject matter of a lawsuit seeking the confirmation of the non-existence of the obligation to return the subsidy, such as a lawsuit seeking the revocation or confirmation of the invalidation of the disposition to return the subsidy, it constitutes a judicial claim, which is a ground for the interruption of extinctive prescription of the obligation related to the public law even if an appeal is filed (see, e.g., Supreme Court Decisions 93Da21606, May 10, 4090

2) Furthermore, Article 168 subparagraph 1 of the Civil Act and Article 170(1) of the Civil Act generally refer to cases where a right holder claims a right, which is a subject matter of lawsuit, as the defendant, as the claimant, in the form of a lawsuit. However, as to the plaintiff's filing of a lawsuit, even if the claimant for prescription has responded to the lawsuit and actively asserted the right in the lawsuit and has been accepted, the interruption of prescription due to the above response act shall take effect when the defendant has filed a lawsuit by exercising his/her right practically. Meanwhile, even in cases where a lawsuit is terminated without determination as to the claim for the right, such as the rejection or withdrawal of the lawsuit, even if the defendant asserted a right against the claimant, but the lawsuit has been rejected without determination as to the claim for the right holder, it shall be deemed that the interruption of prescription retroactively becomes effective at the time of the lawsuit if other measures such as a judicial claim have been withdrawn within six months from that time (see Supreme Court Decision 208Da422423, Aug. 26, 2010).

(b) Markets:

1) Article 11(5) of the instant Convention provides that “In the event the instant agreement is terminated due to the Plaintiff’s cause attributable to the Plaintiff, the Plaintiff shall immediately return the subsidies paid by the Small and Medium Enterprise Information Society Agency from the date of termination, and the Defendant’s termination of the instant agreement on August 25, 2010 is as seen earlier, and the Defendant’s claim for the return of subsidies due to the termination of the instant agreement is the State’s right to the payment of money and the period of prescription is five years (see Article 96(1) of the National Finance Act). It is evident that the period of prescription has lapsed five years from August 26, 2010, following the date of termination of the instant agreement, the Plaintiff filed the instant lawsuit on August 28, 2017. The fact that the Defendant responded by submitting a written reply on September 27, 2017 is clear.

2) However, according to the evidence evidence Nos. 7 through 13 and the overall purport of this court, the plaintiff filed a lawsuit against the president of the Technology Information Society Agency on December 10, 2013, which was before the expiration of the extinctive prescription period of the claim to return the subsidy of this case ( Daejeon District Court 2013Guhap101868), claiming confirmation of invalidity, etc. on the premise that the plaintiff's request to return the subsidy of this case is subject to appeal litigation (the Daejeon District Court 2013Guhap 101868), and the president of the Technology Information Society Agency of Small and Medium Enterprises responded to the lawsuit on January 21, 2014. However, on August 27, 2015, the Supreme Court rejected the above lawsuit on the ground that the request to return the subsidy of this case was not subject to appeal litigation (the above lawsuit of this case). On November 23, 2015, the plaintiff again submitted a written response against the competent District Court 2016Da26161065.

In full view of the above facts and the following circumstances acknowledged by the aforementioned evidence, the Defendant asserted the right by responding to the instant No. 1 lawsuit filed by the Plaintiff prior to the expiration of the extinctive prescription period of the instant claim to return the subsidies, and all claims for the right to comply with the instant No. 2 lawsuit filed within six months after the rejection of the instant lawsuit, constitutes a judicial claim, which is a cause interrupting the extinctive prescription period, and thus, the extinctive prescription period of the instant claim to return the subsidies, thereby, was interrupted on January 21, 2014, which was rejected by the president of the Small and Medium Technology Information Promotion Agency pursuant to Article 170(2) of the Civil Act by analogy.

A) Although the president of the Technology Information Promotion Agency or the president of the Technology Information Promotion Agency for Small and Medium Enterprises, who is a party to the instant lawsuit, is not the Republic of Korea in the form of the instant lawsuit, the president of the Small and Medium Enterprise Information Promotion Agency or the president of the Technology Information Promotion Agency for Small and Medium Enterprises, who is a party to the instant lawsuit, concludes the instant agreement after being entrusted by the Administrator of the Small and Medium Business Administration with the management of the payment, settlement, etc. of government contributions, pays the instant subsidies, and notifies the termination and return of the instant agreement, the response of the president of the Technology Information Promotion Agency for Small

B) While seeking confirmation of invalidity of the request for the return of the instant subsidy in the first lawsuit of this case, the Plaintiff asserted that ① the request for the return of the instant subsidy was made without any legal basis, ② there was no ground for termination of the instant agreement, or there was no cause attributable to the Plaintiff. Although illegality of the request for the return of the instant subsidy, which is the subject matter of the lawsuit of this case, and the existence of the obligation for the return of the instant subsidy, which is the subject matter of the lawsuit of this case, are not identical in the form, it is a major issue to determine whether the “whether there is any ground for termination of the instant agreement or any cause attributable to it,” which is substantially similar and “if there is any ground for termination of the instant agreement,” and the “the Plaintiff is a cause attributable to it.” Therefore, if the president of the Small and Medium Enterprise Information Promotion Agency contests the Plaintiff’s claim in the first lawsuit of this case, it shall be deemed that the right holder was not a locked person on his right by asserting his claim for the right to the instant lawsuit, it does not constitute a judicial claim for interruption of extinctive prescription.

C) The Plaintiff asserts that Article 170(2) of the Civil Act applies mutatis mutandis to Article 170(2) of the Civil Act, which can recognize the validity of interruption of extinctive prescription, is limited to cases where the right holder actively files a lawsuit, and does not include cases where the Defendant

However, the reason for the existence of the prescription system lies in respecting the permanent state of fact and not protecting the locked person above the right, and in particular, since the extinctive prescription is meaningful to the latter, if the right holder expresses that he is not a locked person on the right by asserting his judicial right, it shall be deemed that the cause for interrupting prescription falls under a judicial claim, which is the cause for interrupting prescription (see Supreme Court en banc Decision 91Da32053, Mar. 31, 192, etc.). Therefore, in applying Article 170(2) of the Civil Act mutatis mutandis, it is sufficient to view that in applying Article 170(2) of the Civil Act, the right holder expressed that he is not a locked person on the right by asserting his judicial right, if the right holder actively

C. Sub-committee

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jong-soo (Presiding Judge)