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(영문) 대법원 2017. 10. 26. 선고 2017다20111 판결
[근저당권설정등기말소][미간행]
Main Issues

Whether the initial date of the extinctive prescription is subject to the principle of pleading (affirmative), and whether the court may make the initial date of the extinctive prescription and the date different from the date when the party claims to the court (negative)

[Reference Provisions]

Article 166 of the Civil Act, Article 203 of the Civil Procedure Act

Reference Cases

Supreme Court Decision 94Da35886 delivered on August 25, 1995 (Gong1995Ha, 3263) Supreme Court Decision 2006Da22852, 22869 Delivered on September 22, 2006

Plaintiff-Appellant

Plaintiff (Law Firm Nung, Attorney Yang Dong-soo, Counsel for the plaintiff-appellant)

Defendant-Appellee

Defendant 1 and one other

Judgment of the lower court

Suwon District Court Decision 2015Na3232 decided April 4, 2017

Text

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the statute of limitations has been interrupted for the following reasons as to the Plaintiff’s assertion that: (a) the credit extended to EbCC Co., Ltd. (hereinafter “EbCC”) (hereinafter “EbC”), which is the secured claim of the instant right to collateral security, was extinguished on or around December 10, 2008; and (b) the period of extinctive prescription for commercial claims expired five years after the lapse of the period of extinctive prescription.

① The Defendants: (a) received the foregoing claim from a person who is registered as the Republic of Korea; and (b) completed the additional registration of partial transfer of each right to collateral security; (c) on January 20, 2010, E.C. written and delivered to Defendant 2; and (d) on February 26, 2012, E.C. written and delivered to Defendant 1 a written agreement of non-payment of the acquired claim and a promissory note, respectively.

② This is the recognition of the existence of each acquisition claim against the Defendants before the expiration of the extinctive prescription period by EPC, the debtor.

2. The gist of the allegation in the grounds of appeal as to this point is as follows: (a) from January 20, 2010 and February 26, 2012 as of March 14, 2017, the date of the closing of argument in the lower court, the period of extinctive prescription has elapsed five years in total; and (b) the lower court erred by misapprehending the legal doctrine as to the completion of extinctive prescription, failing to exhaust all necessary deliberations, and omitting judgment.

3. However, since the starting date of extinctive prescription falls under the specific facts constituting the legal requirements for the assertion of extinctive prescription or defense and the pleading principle is applied, the court may not regard the starting date and any date different from that claimed by the parties as the starting date of extinctive prescription (see, e.g., Supreme Court Decisions 94Da35886, Aug. 25, 1995; 2006Da22852, 22869, Sept. 22, 2006).

In this case, there is no evidence suggesting that the Plaintiff asserted January 20, 2010 and February 26, 2012, which was the time when each of the grounds for the debt approval occurred, as above, as the initial date of the new extinctive prescription.

As a result, the argument in the grounds of appeal cannot be a legitimate ground of appeal due to a new argument that was made before the final appeal. In addition, it cannot be said that the lower court did not determine the completion of extinctive prescription by considering the point of time as the initial date of the final appeal.

4. Therefore, all appeals are 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 Jo Hee-de (Presiding Justice)

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심급 사건
- 수원지방법원 2017.4.4.선고 2015나3232