[1] The period of extinctive prescription of a right to claim insurance based on a special contract for coverage of an insured motor vehicle (=2 years) and its starting point (=the time of occurrence of an insurance accident)

[2] In a case where an obligor renounces the benefit of prescription by approving the obligation after the expiration of the statute of limitations, whether the new statute of limitations will run from that time (affirmative)

[3] In a case where an intent to claim the performance of an obligation against the defendant as to a notice of lawsuit meeting the requirements is expressed, whether the peremptory notice as a cause of interruption of prescription under Article 174 of the Civil Code is recognized (affirmative), and in this case, the starting point of the six-month period under the above provision (=the starting point at the

[1] Article 62 of the Commercial Act, which provides for the period of extinctive prescription of a claim for insurance amount, provides for both non-life insurance and personal insurance. Barring any special provision, barring any special provision, even if an insurance based on a special agreement for coverage for injury by an non-life-free automobile actually compensates for actual damage not compensated due to the insured’s loss of death or injury caused by an accident caused by an accident caused by an accident caused by an non-life-free automobile, the right to claim for insurance is not different from the claim for insurance amount under Article 662 of the Commercial Act, and thus, the extinctive prescription expires if it is not exercised for two years. The right to claim for insurance can be exercised from the time of the occurrence of the insurance accident. Thus, the extinctive prescription shall run from the time of the occurrence of

[2] Where an obligor renounces the benefit of prescription by approving the obligor’s obligation to the obligee after the expiration of the extinctive prescription, the extinctive prescription shall run anew from that time

[3] In a case where the requirements for a notice of lawsuit are met, if the person who made a notice of lawsuit expresses his/her intent to demand performance of obligation to the defendant against the defendant, the peremptory effect as a cause for interrupting prescription under Article 174 of the Civil Act is recognized. In light of the purport of the system, it is reasonable to interpret the starting point or the expiration point of the interruption of prescription on behalf of the original right holder. In a case where the notice of lawsuit is given to a third party who can participate in the lawsuit, unlike the ordinary peremptory notice, it is done through the court’s act. In a case where the notice of lawsuit is given to the third party, regardless of whether the said person actually participated in the lawsuit, the defendant cannot assert against the factual and legal judgment which forms the basis of the conclusion at the final and conclusive judgment at the previous lawsuit, and thus, according to the result of the lawsuit, it is deemed that the person who made the notice has expressed his/her intention to exercise his/her right to the defendant as a result of the lawsuit. Therefore, the period in question shall be interpreted as the period in which the lawsuit is in force.

[1] Article 62 of the Commercial Act, Article 166(1) of the Civil Act / [2] Articles 166(1), 168 subparag. 3, and 184(1) of the Civil Act / [3] Articles 84 and 86 of the Civil Procedure Act, Article 174 of the Civil Act

[1] Supreme Court Decision 99Da66878 delivered on March 23, 200 (Gong2000Sang, 1034) / [3] Supreme Court Decision 70Da593 delivered on September 17, 1970 (No. 18-3, 3) Supreme Court Decision 88Meu6358 delivered on June 25, 1991 (Gong1986, 535), Supreme Court Decision 2005Da25632 delivered on June 16, 2006 (Gong2006Ha, 1327)

Plaintiff (Attorney Han-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Young, Attorneys Cho Dong-jin et al., Counsel for defendant-appellant)

Busan District Court Decision 2008Na15527 Decided January 16, 2009

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

1. Judgment on the misapprehension of legal principles as to the starting point of extinctive prescription

Article 62 of the Commercial Act, which provides for the period of extinctive prescription of a claim for insurance amount, provides for both non-life insurance and life insurance, unless otherwise specifically provided, and even if an insurance based on a special contract for accident security by an non-life insurance motor vehicle actually compensates for actual damages not compensated due to the insured's death or injury caused by an accident caused by a non-life insurance motor vehicle, the claim for insurance money is not different from the claim for insurance amount under Article 662 of the Commercial Act, and is thus subject to extinctive prescription if it is not exercised for two years, and the claim for insurance money can exercise its right from the time when the occurrence of the insurance accident becomes specific and conclusive, barring any special circumstance, the extinctive prescription shall run from the time when the insurance accident occurred pursuant to Article 166(1) of the Civil Act (see Supreme Court Decision 9Da6878, Mar. 23, 200, etc.).

According to the reasoning of the first instance judgment cited by the lower court, it is difficult to view that the Plaintiff was in fact unable to exercise the insurance claim of this case until a conviction of violation of the Act on Special Cases Concerning the Settlement of Traffic Accidents, etc., was finalized, in light of the following facts after comprehensively taking account of the adopted evidence, and determined that the statute of limitations of the insurance claim of this case begins from September 3, 2001, when the insurance accident occurred.

We affirm the judgment of the court below in light of the above legal principles and records.

The court below did not err in the misapprehension of legal principles as to the starting point of extinctive prescription as asserted in the grounds of appeal.

2. Judgment on the misapprehension of legal principles as to the effect of waiver of extinctive prescription interest

If an obligor renounces the benefit of prescription by approving the obligation to the obligee after the expiration of the extinctive prescription, it will start anew from that time.

In the judgment of the first instance cited by the court below, on January 11, 2005, it seems that the defendant renounced the benefit of extinctive prescription by paying part of the medical expenses of this case to the plaintiff and approving the obligation to pay insurance money. However, if the defendant renounced the benefit of extinctive prescription, the extinctive prescription will run again after it.

Such determination by the lower court is justifiable in light of the aforementioned legal doctrine.

The court below did not err in the misapprehension of legal principles as to the effect of waiver of extinctive prescription interest as asserted in the grounds of appeal

3. Judgment on the misapprehension of legal principle as to the interruption of extinctive prescription due to the notice of lawsuit

The judgment of the court of first instance cited by the court below, as to the plaintiff's assertion that the extinctive prescription of the insurance claim of this case was suspended due to the notice of lawsuit, the court below rejected the plaintiff's assertion that "the defendant has the right to claim insurance money of this case against the defendant as to the damages exceeding the maximum amount of the liability insurance, out of the plaintiff's damages caused by the accident," and the scope of the liability for payment of insurance money is determined according to the maximum amount of the liability insurance amount to be borne by the non-party corporation, and thus, the defendant with interest in the result of the lawsuit of this case is determined according to the maximum amount of the liability insurance amount to be borne by the non-party corporation, but the interruption of prescription is not effective in principle, even if the notice of lawsuit has the effect as the maximum amount, and even if it has the effect as the notice of lawsuit, the interruption of prescription is not effective without a judicial claim within six months thereafter, and the plaintiff's assertion that the lawsuit of this case was raised from June 1, 2006 to June 16.

However, in a case where the requirements for the notice of lawsuit are met, if the person who has given notice of lawsuit expresses his/her intent to demand performance of obligation against the defendant for the performance of obligation, it shall be recognized that the peremptory effect as grounds for interruption of prescription under Article 174 of the Civil Act is recognized (see Supreme Court Decision 70Da593, Sept. 17, 1970). In light of the purpose of the system, it is reasonable to interpret the starting point or the expiration point of the interruption of prescription as satisfy for the original right holder (see Supreme Court Decision 2005Da25632, Jun. 16, 2006). In a case of peremptory notice due to the notice of lawsuit, it is done through the court’s action, unlike the common peremptory notice, in a case where the defendant has given notice of lawsuit against the third party who is entitled to participate in the lawsuit, the defendant shall be deemed to have the effect of continuing to exercise his/her right in the lawsuit, regardless of whether he/she actually participated in the lawsuit or not.

According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, among the plaintiff's damages caused by the traffic accident of this case on June 1, 2006, during the lawsuit against the non-party corporation, etc., the plaintiff filed an application for a notice of lawsuit containing the purport that the non-party corporation has the right to claim the insurance money of this case against the defendant, and around that time, the notice of lawsuit was served on the defendant. The above lawsuit against the non-party corporation was concluded as a final and conclusive decision substituting conciliation on August 14, 2007. Accordingly, the scope of the defendant's obligation to pay insurance amount is set according to the limit of the liability insurance amount borne by the non-party corporation. Thus, the defendant, the defendant, who is the defendant, constitutes a person eligible to participate in the above lawsuit against the non-party corporation, and thus, it can be deemed that the above lawsuit continues to have the effect until August 14, 2007. Thus, it is reasonable to deem that the prescription period of the insurance claim of this case was interrupted at the time of this case.

Nevertheless, the lower court rejected the Plaintiff’s assertion on the ground that the interruption of extinctive prescription does not have the effect of interrupting extinctive prescription due to the notice of lawsuit, or even if the notice of lawsuit has the effect as a peremptory notice, it did not make a judicial claim within six months from the date of the notice of lawsuit, and thus, it did not have the effect of interrupting extinctive prescription. In so determining, the lower court erred by misapprehending

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, 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.

Justices Yang Chang-soo (Presiding Justice)