[1] Whether the interruption of prescription following the decision to commence auction against a real estate owned by one person jointly and severally liable affects another jointly and severally liable (negative)

[2] In a case where the obligee filed a request for auction against the other obligor within six months after filing a request for auction against the immovables owned by one obligee jointly and severally liable, whether the interruption of prescription against the other obligor jointly and severally liable becomes effective (affirmative), and the point at which the prescription suspended is newly proceeding (=the time the judgment becomes final and conclusive)

[1] In a case where a real estate owned by one of the obligors jointly and severally liable upon a motion of the obligee was seized, the extinctive prescription of the claim against the above obligor is interrupted, but the interruption of prescription by a seizure does not affect other obligors, and thus, the interruption of prescription by the seizure is not effective against the other obligors, and thus, it cannot be asserted against

[2] In case where the creditor filed a request for auction against one of the obligors jointly and severally liable, it has the effect as peremptory notice, and the claim for performance against the other obligors also has the effect on the other obligors. Thus, if the creditor filed a judicial claim against the other obligors within six months, the extinctive prescription of the other obligors is not interrupted, but the prescription interrupted by this is not when the above auction procedure has been completed, but it is new from the time when the judgment became final and conclusive

[1] Article 168 subparag. 2 and Article 423 of the Civil Act / [2] Article 168 subparag. 1, Article 174, Article 178(2), and Article 416 of the Civil Act

[1] Supreme Court Decision 89Meu32606 delivered on June 26, 1990 (Gong1990, 1572) Supreme Court Decision 97Da1290 delivered on August 29, 1997 (Gong1997Ha, 2867) / [2] Supreme Court Decision 91Da4118 delivered on February 11, 1992 (Gong192, 103)

Korea Asset Management Corporation (Attorney Kim Jae-sub, Counsel for defendant-appellant)

Defendant

Seoul High Court Decision 2000Na56046 delivered on March 16, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The facts acknowledged by the court below are as follows.

A. The plaintiff acquired a claim against the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 3 were declared to be jointly and severally liable for payment of 25,769,573 won and damages for delay. The decision became final and conclusive on November 19, 1978.

B. The non-party 1 died on March 22, 1985, and the defendant inherited his obligation to the plaintiff together with other inheritors.

C. On June 26, 1990, the Plaintiff filed an application for a voluntary auction by exercising the right to collateral security against 4th 3th 3th 3th Mad Forest in Eunpyeong-gu Seoul ( Address omitted) with Nonparty 2 jointly owned by Samman Timber Industry Co., Ltd. in 198 and Nonparty 2, and filed an application for a compulsory auction by the above judgment, and received KRW 71,253,030 from the auction procedure.

D. Meanwhile, in order to prevent the completion of the extinctive prescription of the claim against the Defendant, etc. under the above judgment, the Plaintiff filed a lawsuit claiming transfer money again with the Seoul District Court 88Gahap28571 (Seoul District Court 88Gahap28571) on February 17, 1989 against the non-party 1’s inheritors, including the Samsung Timber Industry Co., Ltd. and the Defendant, and was sentenced to the judgment on February 17, 1989 that “the Defendant would pay KRW 1,94,873 and damages for delay.” The judgment became final and conclusive on October 24, 1989.

2. After recognizing the above facts, the lower court determined that: (a) since the instant lawsuit was filed on October 25, 1999, ten years after the Seoul District Court Decision 88Gahap28571, which became final and conclusive, the Plaintiff’s claim against the Defendant was extinguished by prescription; and (b) even if the Plaintiff applied for voluntary auction or compulsory auction on the real estate owned by Samhan Timber Industries Co., Ltd., which was jointly and severally liable with the Defendant around 198, and the real estate was seized according to the decision of commencement, the lower court did not have any evidence to deem that the Plaintiff notified the Defendant of such fact or claimed performance against Samsung Timber Industry Co., Ltd., Ltd., which

In this case, ① the period of extinctive prescription of the Plaintiff’s claim against the said company was interrupted due to the real estate attachment by the order to commence auction upon the Plaintiff’s request, but the interruption of prescription by seizure does not affect other joint and several liability. As such, the interruption of prescription by seizure does not affect the other joint and several liability, ② the Plaintiff’s request for auction has the effect as peremptory notice, ② the Plaintiff’s request for auction is effective against the other joint and several liability, and the claim for performance of joint and several liability is effective against the Defendant. The Plaintiff filed a judicial claim against the Defendant under Seoul District Court Branch 88Gahap28571 within six months from the date the Plaintiff filed a request for auction, but the period of prescription interrupted by judicial claim was newly proceeded from the time the judgment became final and conclusive

Therefore, the court below's decision that the claim of this case against the defendant was extinguished by prescription is justified as a result, and there is no error in the misapprehension of legal principles as alleged in the ground of appeal, and thus, the ground of

3. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.

Justices Zwon (Presiding Justice)