[1] In a case where an obligee actively claims a right by responding to a suit as a defendant and such claim is accepted, whether it constitutes a judicial claim, which is a ground for interrupting prescription (affirmative)

[2] Whether an act of responding to a lawsuit filed by a person who does not directly bear an obligation constitutes an act corresponding to a judicial claim, which is the cause of interruption of extinctive prescription under the Civil Act, although the third acquisitor or a person who has pledged his/her property to secure another's property, etc., whose provisional registration

[1] Articles 168 subparag. 1 and 170 of the Civil Act / [2] Articles 168 subparag. 1 and 170 of the Civil Act

[2] Supreme Court Decision 2003Da30890 decided Jan. 16, 2004 (Gong2004Sang, 348)

Plaintiff (Law Firm Barun, Attorneys Kang Jon et al., Counsel for the plaintiff-appellant)

Defendant (Non-former Law Firm, Attorneys Cho Han-han et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na49593 decided May 9, 2006

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental statements, etc. submitted after the expiration of the period).

1. Article 168 subparagraph 1 of the Civil Act and Article 170 (1) of the Civil Act stipulate a judicial claim as one of the causes for interruption of prescription as one of the causes for interruption of prescription means not only the case where a right holder claims a right by lawsuit against a person who asserts prescription, but also the case where a person who asserts prescription has filed a lawsuit as the plaintiff and has actively asserted a right in the lawsuit and has accepted it (see Supreme Court en banc Decision 92Da47861, Dec. 21, 1993). However, in order to recognize the act of responding to a lawsuit by a person who claims prescription as a cause for interruption of prescription as a cause for interruption of prescription under the Civil Act, a lawsuit filed by a person who has a duty to file a claim against the person who has the duty to file a lawsuit shall be brought to the person who has the right to file the lawsuit. Thus, although the third acquisitor who acquired the ownership of the real estate after the provisional registration for security was established or a person who does not have a direct duty to file a lawsuit cannot be deemed as an act corresponding to a judicial claim against the right holder (see Supreme Court Decision 93Da.

According to the records, the plaintiff acquired real estate for the purpose of provisional registration under the name of the defendant, and filed a lawsuit against the defendant for the cancellation of provisional registration two times, claiming that the provisional registration was completed based on false documents or false sales contract, and the defendant respondeded thereto, and recognized the facts of winning all by asserting the existence of loan claims against the non-party. Examining these facts in light of the legal principles as seen earlier, the plaintiff can invoke prescription as a third acquisitor of the real estate on which the provisional registration for security was established, but it is merely a person who does not bear a direct obligation, and even if the defendant respondeds as above, it cannot be deemed as an act of responding to the interruption of prescription.

Although there are circumstances, as to the plaintiff's claim seeking the cancellation of a provisional registration made for the purpose of security and the principal registration made on the basis of a provisional registration on the premise that the defendant's claim against the non-party has expired, the court below erred by misapprehending the legal principles on the interruption of extinctive prescription and thereby affecting the conclusion of judgment, which affected the conclusion of the judgment, on the grounds that the court below erred by misapprehending the legal principles on the interruption of extinctive prescription and rejecting the plaintiff's claim. (The plaintiff did not go through liquidation procedures in accordance with the Provisional Registration Security Act when the defendant completed the principal registration, and thus, the principal registration in the name of the defendant was null and void. Therefore, the court below rejected the plaintiff's assertion on the interruption of extinctive prescription as to the plaintiff's claim

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Sung-tae (Presiding Justice)