[1] The effective scope of the interruption of extinctive prescription where a lawsuit is filed against only a part of one claim

[2] In a case where: (a) while claiming only a part of the claim as the subject matter of a claim in the complaint, it was indicated that the claim amount should be extended according to the progress of the lawsuit; (b) but it was not actually extended until the lawsuit is completed, whether the interruption of prescription due to a judicial claim takes effect on the remainder of the claim (negative); and (c) in such a case, whether the prescription period for the remainder may be interrupted by a creditor by taking a measure as stipulated in Article 174 of the Civil Act within six months from

[1] In a case where a lawsuit is filed by clearly stating the purport that a judgment is sought only for a part of one claim, the interruption of extinctive prescription by the lawsuit becomes effective only for that part, and the remainder does not occur. However, in a case where only a part of the claim which is the object of the claim is claimed in the complaint, and the claim amount should be expanded according to the progress of the lawsuit, and where the claim amount is actually expanded until the lawsuit is completed, it shall be interpreted that a judgment on the whole claim was sought from the time of the lawsuit. Therefore, the interruption of prescription by a judicial claim becomes effective

[2] In a case where the complaint stated that only a part of the claims which are the subject of the claim should be expanded according to the progress of the lawsuit, but the claim amount is not actually expanded until the lawsuit is completed, in light of the progress of the lawsuit, it shall not be deemed that a judgment on the whole claim was sought. Therefore, the interruption of prescription due to a judicial claim shall not be effective with respect to the remaining part.

However, in such a case, a creditor who, while filing a lawsuit, expressed the intent to expand the future claim amount, is generally deemed to have the intent to claim the remainder in the future. Thus, barring any other special circumstance, it shall be deemed that, while the lawsuit in question is pending, the situation where the creditor expressed his/her intent to exercise his/her right to the remainder and exercises his/her right by peremptory notice continues to exist. The creditor may interrupt the extinctive prescription for the remainder by taking measures prescribed in Article 174 of the Civil Act within six months from the time the lawsuit in

[1] Articles 168 and 170 of the Civil Act / [2] Articles 168, 170, and 174 of the Civil Act; Article 84 of the Civil Procedure Act

[1] Supreme Court Decision 74Da1557 delivered on February 25, 1975 (Gong1975, 8348) Supreme Court Decision 91Da43695 delivered on April 10, 1992 (Gong192, 1541)

Plaintiff (Law Firm Young-soo, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Nowon-gu, Seoul Special Metropolitan City (Government Law Firm Corporation, Attorneys Lee Jae-type et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2018Na52206 Decided February 20, 2019

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

The grounds of appeal are examined.

1. A. In a case where a lawsuit is filed by clarifying the purport that a judgment is sought only with respect to a part of one claim, the interruption of extinctive prescription becomes effective only for that part of the claim, and the remainder does not occur (see Supreme Court Decision 74Da1557, Feb. 25, 1975, etc.). However, in a case where a claim is filed by the warden and only a part of the claim is claimed as the object of the claim, and the claim amount should be expanded depending on the progress of the lawsuit, and where the claim amount is actually expanded until the lawsuit is completed, it is interpreted that a judgment was sought as to the whole claim from the time of the lawsuit. In such a case, the interruption of prescription due to a judicial claim becomes effective as to the whole claim from the time of the lawsuit (see Supreme Court Decision 91Da43695, Apr. 10,

B. In a case where the complaint stated that only a part of the claims which are the subject of the claim should be expanded according to the progress of the lawsuit, but the amount of the claim is not actually expanded until the lawsuit is completed, in light of the progress of the lawsuit, it cannot be deemed that the judgment on the whole claim was sought. Therefore, the interruption of prescription due to a judicial claim does not take effect with respect to the remaining part.

However, in such a case, a creditor who, while filing a lawsuit, expressed the intent to expand the future claim amount, is generally deemed to have the intent to claim the remainder in the future. Thus, barring any other special circumstance, it shall be deemed that, while the lawsuit in question is pending, the situation where the creditor expressed his/her intent to exercise his/her right to the remainder and exercises his/her right by peremptory notice continues to exist. The creditor may interrupt the extinctive prescription for the remainder by taking measures prescribed in Article 174 of the Civil Act within six months from the time the lawsuit in question

On the other hand, unlike the peremptory notice, the Supreme Court has revealed that with respect to the peremptory notice given through the court's action, the situation in which the person exercises his right by the peremptory notice during the pending lawsuit continues to exist, and that the statute of limitations may be interrupted by taking measures prescribed in Article 174 of the Civil Act within 6 months from the time the lawsuit in question is terminated (see Supreme Court Decision 2009Da14340, Jul. 9, 2009, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff provided a residential building due to the public works executed by the Defendant, which became an apartment unit as part of the relocation measures, and the sales price was fully paid up by October 31, 2008.

B. On July 30, 2013, the Plaintiff filed the instant prior suit against the Defendant, asserting that the Defendant, a project implementer, was obligated to return unjust enrichment, because the cost of basic living facilities was included in the apartment sale price.

C. Under the title of “part of claim” in the complaint of the preceding suit of this case, “the plaintiff shall have the right to claim restitution of unjust enrichment, but the accurate amount shall be calculated by receiving data related to basic facilities from the defendant later, and shall be claimed only for KRW 2,000,000, which is a part of them.”

D. The Plaintiff did not expand the claim amount until the completion of the instant prior suit, and on October 12, 2016, the court rendered a judgment that “the Defendant shall pay the Plaintiff KRW 2,00,000,000 and the damages for delay thereof,” which became final and conclusive on November 8, 2016.

E. On May 18, 2017, the Plaintiff filed the instant lawsuit. The Plaintiff claimed 18,808,243 won, excluding the amount recognized in the instant prior lawsuit, and damages for delay.

F. The Plaintiff’s right to claim restitution of unjust enrichment against the Defendant is five years of extinctive prescription with the Plaintiff’s right to claim restitution of unjust enrichment against a local government.

3. Examining the above factual relations in light of the legal principles as seen earlier, inasmuch as the Plaintiff stated that the amount of the claim should be extended in the complaint, etc., but the amount of the claim was not extended until the completion of the instant prior suit, it is reasonable to deem that the Plaintiff filed a judgment only on KRW 2,00,000 and damages for delay thereof in the instant prior suit. As such, the effect of the interruption of the extinctive prescription by the instant prior suit lies only on the said KRW 2,00,000 and damages for delay thereof, and as to the remainder, the status in which the Plaintiff exercised his right by the peremptory notice has continued while the instant prior suit is pending. However, as long as the Plaintiff did not take measures under Article 174 of the Civil Act, such as filing the instant lawsuit within six months after the completion of the instant prior suit, the interruption of prescription becomes null and void.

4. Therefore, the lower court’s conclusion that the extinctive prescription for the remaining portion not claimed in the prior suit of this case has expired is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the

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

Justices Kim Seon-soo (Presiding Justice)