[1] The case affirming the judgment of the court below that where an insurance company paid the fire insurance money to the pledgee of the insurance claim but exercises the right to claim a return of unjust enrichment equivalent to the above insurance money on the ground that the fire was caused intentionally by the insured, the period of the commercial statute of limitations

[2] The meaning of "it is impossible to exercise rights" where the extinctive prescription is not in progress

[1] Article 741 of the Civil Code, Article 64 of the Commercial Code / [2] Article 166 (1) of the Civil Code

[2] Supreme Court en banc Decision 91Da32053 Decided March 31, 1992 (Gong1992, 1406) Supreme Court Decision 2005Da3113 Decided April 28, 2005 (Gong2005Sang, 803) Supreme Court Decision 2006Da63150 Decided May 31, 2007 (Gong2007Ha, 962)

Mez Fire Marine Insurance Co., Ltd. (Attorney Han-hwan, Counsel for the plaintiff-appellant)

Gwangju Bank (Law Firm Gyeong & Yang, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na75080 decided June 13, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. As to the extinctive prescription period

The court below rejected the lawsuit of this case on October 31 and December 2, 1997, on the premise that Article 64 of the Commercial Act with a five-year extinctive prescription period should apply to the above legal relation, on the ground that the contract of this case between the plaintiff, gold chemical corporation and Geum Steel corporation is the basic commercial activity between merchants, and that the plaintiff's right to claim for the return of unjust enrichment was basically derived from the occurrence of benefits based on the insurance contract of this case which falls under commercial activity, and that the plaintiff's right to claim for return of unjust enrichment was completed, as well as the circumstance or cause of the occurrence of the claim, the status and relationship between the plaintiff and the defendant, and the long-term lapse of time, making it difficult to preserve or exercise the claim in the financial transaction against the pledgee. Thus, the court below rejected the lawsuit of this case on the ground that the plaintiff's right to claim for the return of unjust enrichment had expired on the ground that the defendant's right to claim for the return of unjust enrichment had been extinguished on the ground that it had been extinguished on March 21 and around 20, 20.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, we affirm the lower court’s determination as justifiable.

The court below did not err by misapprehending the legal principles as to the statute of limitations period.

2. As to the starting point of the extinctive prescription period

The extinctive prescription does not proceed from the time when a right has arisen objectively and is able to exercise the right, and it is not possible to exercise the right. Here, "the case where the right cannot be exercised" refers to the case where there is an obstacle to the exercise of the right, for example, the non-existence of the term or the non-performance of the terms and conditions, etc. In fact, even if the existence of the right or the possibility of the exercise of the right was not known, and even if there was no negligence due to the failure of such knowledge, such cause does not constitute a legal obstacle (see Supreme Court en banc Decision 91Da32053, Mar.

The court below rejected the plaintiff's assertion that the plaintiff's claim for return of unjust enrichment against the defendant constitutes a cause for which it is objectively difficult to objectively make it clear that the plaintiff's claim for return of unjust enrichment constitutes a cause for disability. Furthermore, in light of the fact that the plaintiff analyzed the cause of the fire of this case by an adjuster and paid the insurance money of this case after determining whether the accident occurred through an adjuster, the court below rejected the plaintiff's claim for return of unjust enrichment of this case.

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, we affirm the lower court’s determination as justifiable.

The court below did not err in the misapprehension of legal principles as to the starting point of the statute of limitations period.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)