[1] In a case where a new damage, which was entirely unforeseeable at the time of a tort, occurs or the damage was expanded, the starting point of starting the statute of limitations for damages

[2] The method of approving obligations as a ground for interrupting extinctive prescription

[3] The case holding that where the insurer of the tortfeasor paid medical expenses of the victim directly to a medical institution pursuant to the proviso of Article 9 (1) and Article 11 of the former Guarantee of Automobile Accident Compensation Act before the expiration of the extinctive prescription of the claim for damages due to the tort, it is reasonable to view that the insurer has acknowledged the whole liability for damages on the premise that the insurer is liable for damages against the victim, and that it cannot be viewed as

[1] A claim for damages caused by a tort is extinguished by prescription, unless it is exercised within three years from the date when the injured party or his legal representative becomes aware of the damage or the perpetrator. The "date when the injured party or his legal representative becomes aware of the damage" refers to the actual and specific awareness of the damage, and is not sufficient with the presumption or awareness of the damage. In ordinary cases, the injured party may be deemed to have known of the damage when the injured party suffered the damage. However, in case where the injured party suffered new damage which could not have been anticipated at the time of the tort due to subsequent legacy, etc. or further damages are expanded, it shall be deemed that the injured party was aware of the new or expanded damage when such a cause has been proved, and as to the newly or expanded damages, the period of prescription expires from the time when such cause has been proved.

[2] Approval as a ground for interrupting extinctive prescription is established when an obligor who is a party to the benefit of prescription indicates that the obligor would lose the right due to the completion of the extinctive prescription or his/her agent is aware of the existence of the right. The method of indication does not require any form, but does not require any explicit or implied. An implied recognition indication is sufficient if it is performed in such a way that the obligor can make the other party against whom the indication is based on the premise that the obligor is aware of the existence and amount of the obligation.

[3] The case holding that it is reasonable to view that the insurer of the tortfeasor's medical expenses paid directly to a medical institution pursuant to the proviso of Article 9 (1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8127 of Dec. 28, 2006) and Article 11 of the former Guarantee of Automobile Accident Compensation Act prior to the expiration of the extinctive prescription of the right to claim compensation for damages caused by the tort as the whole liability for damages on the premise that the insurer is liable for damages to the victim, barring special circumstances, and that it cannot be viewed as

[1] Article 766 of the Civil Code / [2] Article 168 subparagraph 3 of the Civil Code, Article 177 of the Civil Code / [3] Article 168 subparagraph 3 of the Civil Code, Article 9 (1) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 8127 of Dec. 28, 2006) (see current Article 10 (1)), and Article 11 (see current Article 12 of the Civil Code)

[1] Supreme Court Decision 99Da42797 decided Sep. 14, 2001 (Gong2001Ha, 2219), Supreme Court Decision 2008Da21518 decided Jul. 10, 2008 / [2] Supreme Court Decision 92Da947 decided Apr. 14, 1992 (Gong192, 1595), Supreme Court Decision 2004Da5959 decided Feb. 17, 2005 (Gong2004Da64552 decided Nov. 29, 2007)

Plaintiff (Attorney Kim Sung-jin, Counsel for the plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Ba-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Na6303 decided October 23, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

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

The right to claim damages due to a tort ceases to exist if it is not exercised within three years from the date when the injured party or his legal representative becomes aware of the damage or the perpetrator. The "date when the injured party or his legal representative becomes aware of the damage" refers to the actual and specific awareness of the damage, and the presumption or awareness of the damage is not sufficient. In ordinary cases, the injured party may be deemed to have known of the damage when the injured party suffered the damage. However, in a case where the injured party suffered new damage at all unforeseeable at the time of the tort due to a post-post gift, etc. or where the damage was expanded beyond the expected amount, it shall be deemed that the injured party was aware of the new or expanded damage at the time of the occurrence or expansion of the damage. As such, the period of prescription expires from the time when such a new or expanded damage has been proved (see, e.g., Supreme Court Decisions 9Da42797, Sep. 14, 2001; 208Da21518, Jul. 10, 2008).

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff suffered injury on August 26, 2002 due to the accident of this case on August 26, 2002 and was diagnosed with the escape certificate on September 4, 2002, and found that the plaintiff was aware of damage when the plaintiff was diagnosed with the escape certificate on the essential side as above. Thus, the court below determined that the extinctive prescription of the right to claim damages of this case was commenced from September 4, 2002.

In light of the above legal principles and records, the judgment of the court below is justified.

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 interruption of extinctive prescription due to the recognition of an obligation

Approval as a ground for interruption of extinctive prescription is established when the obligor, who is a party to the benefit of prescription, has indicated that he/she is aware of the existence of the right to the obligor or his/her agent, who is the party to the benefit of prescription. The method of indication does not require any form, but does not require any explicit impliedly. An implied recognition is sufficient if it is performed in such a way that the obligor, on the premise that the obligor is aware of the existence and amount of the obligation, can compel the other party to the indication to conceal the obligation through such indication (see Supreme Court Decisions 92Da947, Apr. 14, 1992; 2004Da5959, Feb. 17, 2005, etc.).

According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant paid medical expenses to the plaintiff on January 25, 2003 and February 28, 2003, which were not more than three years from September 4, 2002, the extinctive prescription period of the claim for damages of this case, as above, and again paid medical expenses to the plaintiff on September 23, 2005 and September 26, 2005, which were not more than three years thereafter, prior to the expiration of the extinctive prescription period. The court below determined that the damages for the plaintiff to be claimed in the lawsuit of this case, as daily income and consolation money, are different in the subject matter of lawsuit from the active damages (treatment expenses) approved by the defendant, and that the interruption of the extinctive prescription period due to the defendant's medical expenses does not extend to the actual income and consolation money for the plaintiff seeking the suspension of

However, in a case where a claim for damages is filed against a tortfeasor for personal injury due to a tort, the damage, which is the object of the lawsuit, is divided into three parts: active property damage, such as ordinary medical expenses, passive property damage resulting from loss of lost profits, and mental suffering (see Supreme Court Decision 76Da1313, Oct. 12, 1976, etc.). However, as recognized by the court below, if the defendant directly paid medical expenses of the plaintiff due to the accident of this case to a medical institution prior to the expiration of the extinctive prescription pursuant to the proviso of Article 9(1) and Article 11 of the former Guarantee of Automobile Accident Compensation Act (wholly amended by Act No. 8127, Dec. 28, 2006), it is reasonable to view that the whole liability for damages arising from the accident is approved on the premise that the plaintiff is liable for damages, barring any special circumstance, and it cannot be deemed that the defendant has approved the obligation limited to active damages such as medical expenses.

Nevertheless, the lower court rejected the Plaintiff’s assertion as to the interruption of extinctive prescription on the ground that the interruption of extinctive prescription due to the Defendant’s payment of medical expenses does not extend to lost income and consolation money. In so doing, the lower court erred by misapprehending the legal doctrine on the interruption of extinctive prescription due to the approval of an obligation

The ground of appeal pointing this out is with merit.

3. 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)