2018Da255266 Objection

B

Law Firm Sil Law Firm, Counsel for defendant-appellant

Attorney Park Byung-young, Counsel for the plaintiff-appellant

Gyeonggi-do

Attorney Jin-hee et al., Counsel for the defendant-appellant

Suwon District Court Decision 2018Na20083 Decided July 5, 2018

March 14, 2019

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, on April 17, 2017, after the expiration of the extinctive prescription period, the court below acknowledged that the Plaintiff visited the Office of Education D of the Government Office of Education affiliated with the Defendant to provide repayment of KRW 15 million, which is a part of the principal and interest of the instant claim, and requested exemption from the remainder of interest obligations. Accordingly, it is reasonable to deem that the Plaintiff actively recognized the legal effect of the instant claim beyond simply showing that the Plaintiff was aware of the existence of the instant claim and expressed its intent to perform the Defendant’s obligation in response thereto. Since the Plaintiff did not receive the amount provided by the Defendant and failed to repay the obligation, it cannot be said that the intent of effect is denied on the sole ground that the Plaintiff failed to receive the amount provided by the Defendant and thereby failed to repay the obligation, the court below determined

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. An obligor entitled to the benefits of prescription may waive the benefits of prescription after the completion of the extinctive prescription, and this is an expression of intent to avoid receiving legal benefits due to the completion of the extinctive prescription. Moreover, determination as to whether there exists an expression of intent to waive such benefits of prescription ought to be made objectively and reasonably in accordance with logical and empirical rules and the common sense of society so that it conforms to the ideology of social justice and equity by comprehensively examining the substance, motive and background of the act indicated and the expression of intent, the purpose and genuine intent of the parties to achieve by expressing intent, etc. (see, e.g., Supreme Court Decision 2011Da56187, 56194, Jul. 25, 2013).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Defendant brought a lawsuit against the Plaintiff et al. against the Plaintiff et al. as the District Court 2006Gahap3285, and as a result, the judgment ordering the Plaintiff to pay KRW 8,954,753 and damages for delay thereof was rendered on January 31, 2007. The above judgment became final and conclusive on March 10, 2007.

The Defendant’s claim against the Plaintiff was completed on March 10, 2017 after ten years from that date.

(2) However, there were multiple co-defendants of the Defendant’s claim for reimbursement of the said amount of reimbursement, among which judgment was served on E on March 22, 2007, and the judgment between the Defendant and E became final and conclusive on April 6, 2007.

(3) On December 16, 2014, the Defendant was issued by the District Court of Jung-gu with a confirmation certificate regarding the claim for reimbursement. The said confirmation certificate Board stated that “The original copy of the judgment is served on the parties on March 3, 2007 and December 22, 2007, and confirmed as of April 6, 2007.”

(4) On April 6, 2017, the Defendant’s public official who is in charge of such circumstance discovered that the Defendant’s claim against the Plaintiff was extinguished due to the completion of the statute of limitations, and thus, sent a letter of demand to the Plaintiff on March 29, 2017. On the other hand, on March 29, 2017, the Defendant filed an application for the specification against the Plaintiff with the Jung Government District Court No. 2017Kao, 2017.

(5) On April 7, 2017, upon the Defendant’s application for specification of property, the District Court rendered a ruling to specify the property on April 7, 2017, and the said ruling was served on the Plaintiff on April 12, 2017.

(6) On April 13, 2017 and April 14, 2017, the Plaintiff: (a) visited the Office of Government Education of Gyeonggi-do in Gyeonggi-do to pay KRW 13 million out of the debt owed to the Defendant; and (b) proposed to allow the remainder to be exempted; (c) however, the F convening officer, etc. refused it on the ground that “it is a public official, and there is no legal basis for self-reduction or exemption, unless it is based on the law.”

(7) On April 17, 2017, the Plaintiff visited the Office of Education of Gyeonggi-do again to repay KRW 15 million to D and F competent authorities, etc., and requested withdrawal of an application for specification of property. However, D, etc. is a public institution and it is impossible for the Educational Support Agency to exempt the amount of debt. The legal procedure is in progress, and the Plaintiff again rejected the Plaintiff’s proposal.

(8) The Plaintiff filed the instant lawsuit by asserting that the Defendant’s claim against the Plaintiff was extinguished by the completion of the statute of limitations at the time when two months elapsed since the Defendant rejected the Plaintiff’s proposal.

(9) In the course of the party principal examination of the court of first instance, the Plaintiff asked the head of the office of education to ask him/her about whether he/she would have paid KRW 28 million from the Office of Education on March 29, 2017, and then asked him/her about his/her opinion, which he/she had not yet completed the extinctive prescription of the Defendant’s claim against the Plaintiff. In light of the foregoing legal principles as seen earlier, it is difficult to interpret the Plaintiff as having expressed his/her intent not to receive legal benefits due to the expiration of the extinctive prescription on April 17, 2017.

(1) In light of the fact that it is not realistic to propose that the creditor who is exempted from the remainder of the debt that the debtor owes by paying a significant portion of the debt, and thereby, it is difficult to view the above proposal made by the plaintiff to the public officials in charge of the defendant three times as a presentation of the dispute resolution proposal premised on the fact that the plaintiff bears the debt to the defendant. However, it is insufficient to conclude that the plaintiff waives the benefit of extinctive prescription with knowledge of the completion of prescription

(2) Meanwhile, in light of the fact that the Defendant’s claim against the Plaintiff was known to be extinguished due to the completion of the statute of limitations on April 6, 2017, which was relatively familiar with the Defendant’s legal services, and there were circumstances to be aware as seen earlier, the office chief of the attorney-at-law office who caused legal advice to the Plaintiff is likely to be missing in the same manner as the Defendant’s public official in charge.

(3) Considering that the Plaintiff’s proposal was immediately immediately after the delivery of an order to specify the property by the District Court, the Plaintiff appears to have presented a negotiation proposal to the Defendant in order to conclude the entire dispute between the Defendant and the Defendant, including the legal relationship arising from the order to specify the property. Therefore, it is difficult to view the Plaintiff’s proposal as a meaningful circumstance that can be deemed to have given up the benefit of extinctive prescription.

(4) Considering the above circumstances, it is difficult to view that the Plaintiff’s filing of the instant lawsuit, claiming that the Defendant’s claim had ceased to exist due to the completion of prescription at the time of the lapse of two months after the Defendant’s public official rejected the Plaintiff’s proposal and that the Plaintiff’s previous position or attitude was inconsistent with

D. Nevertheless, on the grounds stated in its reasoning, the lower court determined that the Plaintiff renounced the benefits of prescription by recognizing the legal effect of the instant claim and expressing the intent to perform the obligation in response thereto. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of the expression of intent to waive the benefits of prescription, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 200

Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge