[1] Where the assertion of the completion of extinctive prescription cannot be allowed as an abuse of right against the principle of good faith

[2] Standard for determining whether a creditor has exercised his/her right within a “reasonable period” from the time the cause for an obligee’s failure to exercise his/her right objectively ceases to exist, and the scope of “reasonable period” in a claim for damages arising from a tort

[1] Articles 2 and 162 of the Civil Act / [2] Articles 2 and 766 (1) of the Civil Act

[1] Supreme Court Decision 2009Da66969 Decided September 8, 201 (Gong2011Ha, 2046) / [2] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077) (Gong2013Ha, 1077) Decided June 27, 2013

Plaintiff

Korea

Busan High Court Decision 2012Na50797 decided May 16, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, acknowledged facts as stated in its reasoning, and determined that the unit belonging to the deceased (the designated party) and the appointed party (the plaintiff (the designated party and the appointed party) cannot claim damages against the defendant until before the establishment of the truth-finding decision of this case, on August 21, 2009, by the Investigation Committee on the Truth of the Death of the deceased, upon the request of the deceased 5, the military medical history investigation committee (hereinafter referred to as the "Investigation Decision") made on August 21, 2009 to find out that the death accident of the deceased occurred due to the continuous suspicion by the appointed party and the illegal acts, such as neglect of management by the commander of the military unit, etc.

In light of the relevant legal principles and records, such recognition and determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on special circumstances against the principle of good faith.

2. Regarding ground of appeal No. 2

A. According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, determined that the exercise of the Defendant’s right to defense of extinctive prescription is not permissible against the principle of good faith, since the Plaintiffs knew or could have known that the deceased’s death accident occurred due to the Defendant’s tort through the determination of the fact-finding by the court of first instance, but the Plaintiffs filed the instant lawsuit on January 10, 2012

B. However, the judgment below that the plaintiffs can claim damages against the defendant as a matter of course within three years from the determination of the truth of this case is not acceptable for the following reasons.

1) The obligor’s exercise of the right of defense on the grounds of extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principle of the Civil Act, and thus, if there is an objective obstacle that the obligee is unable to exercise its right, the obligor’s assertion of extinctive prescription cannot be allowed as abuse of rights against the principle of good faith (see Supreme Court Decision 2009Da66969, Sept. 8, 201, etc.

Meanwhile, even in cases where there exists an objective obstacle to a creditor from exercising his/her rights, the creditor may stop the debtor’s defense of extinctive prescription only within a reasonable period from the time such obstacle was eliminated. Whether there was an exercise of rights within a reasonable period of time should be determined by comprehensively taking into account the relationship between the creditor and the debtor, and whether there were any special circumstances to delay the creditor’s exercise of rights. However, denying the completion of extinctive prescription based on the principle of trust and good faith should be limited to an exceptional limitation on the system of extinctive prescription, which takes the ideology of achieving legal stability, remedy for difficulties in proving evidence, and sanction for neglect of the exercise of rights. Therefore, “reasonable period” of the above exercise of rights should be limited to a short period of time as corresponding to the suspension of prescription under the Civil Act, barring special circumstances, barring special circumstances. Therefore, even if it is inevitable to extend the period due to an exceptional circumstance in individual cases, such period cannot exceed three years, which is the short period of time under Article 766(1) of the Civil Act (see, e.g., Supreme Court en banc Decision 20136Da37207, May 20167.

2) In light of such legal principles, the lower court should have deliberated on the relationship between the Plaintiffs and the Defendant, and whether there were any special circumstances to delay the exercise of the Plaintiffs’ rights, and determined whether to restrict the Plaintiffs’ reasonable period of time by which the Plaintiffs can exercise their rights in a short period or to extend the period by up to three years, which is the maximum period, in the case of the suspension of prescription under the Civil Act.

3) Nevertheless, the lower court deemed that the Plaintiffs are able to exercise the right to claim damages against the Defendant within three years from the date of the determination of the establishment of the truth of this case, and determined that the Defendant’s exercise of the right to claim damages against the Defendant’s defense of extinctive prescription is not permissible in violation of the principle of good faith. In so determining, the lower court erred by misapprehending the legal doctrine on a reasonable period during which the obligor’s exercise of the right to claim

3. Conclusion

Therefore, 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.

[Attachment] List of Selections: Omitted

Justices Kim Yong-deok (Presiding Justice)