(영문) 대법원 2018.12.13.선고 2018다266198 판결

A. If a creditor files an application to specify the debtor's property as stipulated in the Civil Execution Act for the realization of a claim based on a final judgment, and the decision is served on the debtor, the effect of the interruption of the extinctive prescription as a single cause among the extinctive prescription is recognized. Thus, the interruption of the extinctive prescription by the decision to specify the property becomes null and void unless the procedures prescribed in Article 174 of the Civil Act continue to be followed, such as filing a lawsuit within six months from the date of filing a lawsuit or filing a provisional attachment or provisional disposition (see, e.g., Supreme Court Decisions 200Da32161, May 29, 2001; 201Da78606, Jan. 12, 2012).

B. The court below acknowledged the following facts based on the employment evidence.

1) The Defendant filed an application with the Busan District Court for a payment order against the Plaintiff seeking the return of the prepaid payment related to health assistance food business with the Busan District Court Decision 2006Ra39618, and on December 28, 2006, the Plaintiff received the payment order from the above court that “the Plaintiff shall pay the Defendant KRW 43,203,60, and delay damages therefor.” The payment order became final and conclusive on January 1, 2007.2) The Defendant filed an application with the Plaintiff for the time of property specification (hereinafter referred to as “property specification”) against the Plaintiff on November 10, 2010 with the title of the instant payment order as the title of execution, and the Plaintiff received a demand for payment on December 28, 2010.

C. Next, the lower court dismissed the Plaintiff’s claim of this case on the ground that the extinctive prescription of a claim based on the payment order of this case was suspended on November 10, 201, the date of application for specification of the instant property, and the extinctive prescription was to run anew from June 28, 201, on the ground that the extinctive prescription of a claim based on the payment order of this case was suspended on the ground that the claim based on the payment order of this case was to run anew from June 28, 2011, the date of application for specification of the property, and the extinctive prescription has not yet expired, on the grounds that the claim of this case was equivalent to a seizure under the Civil

D. However, even if the Defendant filed an application for an explanation of the property against the Plaintiff and the subsequent decision was served on the Plaintiff, which is the debtor, this is only recognized as a "peremptory" which is the cause of interrupting extinctive prescription. Thus, insofar as the Defendant did not continue the procedure under Article 174 of the Civil Act, such as filing a lawsuit within six months from the date of filing a lawsuit or attaching a provisional attachment, it shall be deemed that the interruption of extinctive prescription becomes void.

Nevertheless, the court below rejected the Plaintiff’s claim of this case on the grounds that the Defendant’s claim based on the payment order of this case was not completed, which erred by misapprehending the legal principles on the interruption of extinctive prescription due to the request for specification of property, thereby affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff, 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.