[1] The method to determine whether there exists an expression of intent to waive the prescription benefit

[2] The case holding that in a case where the Korea Deposit Insurance Corporation established a decision in lieu of conciliation in a claim filed by the Korea Deposit Insurance Corporation of a creditor financial company Gap for a part of the claim for refund of the purchase-price to a third-party obligor Byung, etc. of the debtor Eul, after the expiration of the extinctive prescription period, and the decision was made in lieu of conciliation in a claim suit, such as the full payment filed by the debtor Eul, the court below held that it cannot be readily concluded that the debtor Eul et al. paid part of the claim for collection of part of the remainder of the purchase-price refund claim

[1] An obligor entitled to the benefits of prescription may waive the benefits of prescription after the completion of the statute of limitations, and this is an expression of intent to avoid receiving legal benefits due to the completion of the statute of limitations. Moreover, the determination as to whether there exists an expression of intent to waive such benefits of prescription should be made objectively and reasonably in accordance with logical and empirical rules, and common sense of society so that it conforms to the ideology of social justice and equity by comprehensively considering the substance, motive and background of the act indicated or the expression of intent, the purpose and genuine intent of the parties to achieve by expressing intent, etc.

[2] The case holding that the judgment below erred by misapprehending the legal principles as to the waiver of extinctive prescription, in a case where: (a) the Korea Deposit Insurance Corporation of a creditor financial company Gap filed a claim suit in lieu of conciliation, such as a full payment filed after the lapse of five years from the date of cancellation of a sales contract for part of the claim for refund of the purchase price to a third-party debtor Byung, etc.; and (b) Eul corporation Byung et al. paid part of the claim for collection of part of the remainder of the claim for refund of the purchase price; and (c) subsequently, Eul corporation et al. claimed that the payment of part of the remainder of the claim for refund of the purchase price was renounced by the aforementioned partial payment; and (d) in light of various circumstances, such as the fact that the entire claim for refund of the purchase price and the remainder of the claim for refund of the purchase price, which are not wholly paid, cannot be readily concluded to have expressed the intent to waive the benefit of extinctive prescription on the remainder of the claim for refund of the purchase price.

[1] Article 184 of the Civil Act / [2] Articles 184 and 408 of the Civil Act, Articles 229(3) and 231 of the Civil Execution Act

[1] Supreme Court Decision 2011Da21556 Decided February 28, 2013 (Gong2013Sang, 547)

Nonparty 1 (Law Firm continental Aju, Attorneys Nam Dong-dong et al., Counsel for the plaintiff-appellant)

Korea Deposit Insurance Corporation of a new comprehensive financial corporation

Han-dong Housing Association (Law Firm LLC, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

one school juristic person, university of origin and one other (Law Firm Law Firm, etc. and one other, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na34946, 34953 decided May 19, 201

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. Regarding ground of appeal No. 1

A. Where a third party participates in a lawsuit by succeeding to the whole or part of the right which is the object of the lawsuit while the lawsuit is pending before the court, the status of the plaintiff in the lawsuit shall be succeeded to the successor (see Supreme Court Decision 76Da1999, Dec. 14, 1976, etc.). The effect of the lawsuit by the time when the plaintiff participates in the lawsuit until the succession shall extend to the successor.

B. According to the records, the Sejong Special Metropolitan City Central District Court declared bankrupt on September 8, 2010, and Nonparty 1 was appointed as trustee in bankruptcy, and the succeeding intervenor of the plaintiff (ex officio) and the co-litigation intervenor of the original court (hereinafter referred to as the " succeeded intervenor"). The succeeding intervenor's right to collect the purchase price refund claim against the Defendants in Sejong Special Metropolitan City, which is the subject matter of the lawsuit in this case, is seized and collected by the seizure thereof and the collection obligee's right to collect the purchase price refund claim against the Defendants in accordance with Article 348 (1) of the Debtor Rehabilitation and Bankruptcy Act, and then succeeded to the rights after recovery from the plaintiff (ex officio) and the co-litigation of the original court. The intervenor of the original court's co-litigation filed an application for intervention in the lawsuit against the plaintiff (ex officio) and the co-litigation intervenor of the original court, through the preparatory brief dated 12, 2010 before the application for intervention in the lawsuit in the lawsuit in this case, it is accepted that the Defendants' remaining claim 2500 billion won was transferred in the sale order.

In light of the above legal principles, since the above procedural acts conducted by the intervenor in co-litigation in the court below are effective against the succeeding intervenor, the court below is just in deciding whether the assertion for waiver of the benefit of extinctive prescription is legitimate, and there is no violation of the principle of pleading or explanation as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. An obligor entitled to the benefits of prescription may waive the benefits of prescription after the completion of the extinctive prescription, and this is an expression of intent to avoid receiving legal benefits due to the completion of the extinctive prescription. Moreover, determination as to whether there exists an expression of intent to waive such benefits of prescription should be made objectively and reasonably in accordance with logical and empirical rules and the common sense of society so that it conforms to the ideology of social justice and equity by comprehensively examining the substance, motive and background of the act indicated and the expression of intent, the purpose and genuine intent of the parties to achieve by expressing intent, etc. (see, e.g., Supreme Court Decision 2011Da21556, Feb. 28, 2013).

B. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

(1) Around 1993, Defendant Educational Single-gu University (hereinafter “Defendant Single-gu University”) established a plan for the relocation of the campus, etc. to which the school facilities located in the school site of Yongsan-gu Seoul Metropolitan Government, Yongsan-gu and 15 lots (hereinafter “Korea-dong site”) outside the 15 lots (number 1 omitted) (hereinafter “Korea-dong site”) are relocated to the 8,03 square meters of forest land and 33 lots (hereinafter “use site”).

(2) Accordingly, on June 28, 1996, as both the seller and the truster of the building site in South Korea and the trustee of the building site in South Korea as well as on June 28, 1996, the defendant Lee Jong-dong entered into a basic agreement to implement the project with the Korean Real Estate Trust Co., Ltd. (Seoul District Court, Jun. 2, 2003, which was declared bankrupt on May 19, 2006, and Non-party 2 was appointed as the bankruptcy trustee; hereinafter for convenience, without distinguishing between the bankrupt Korean Real Estate Trust Co., Ltd. and the bankruptcy trustee of the bankrupt Korean Real Estate Trust Co., Ltd., Ltd. and the defendant Korea Real Estate Trust Co., Ltd., Ltd., which were the purchaser of the building site in

(3) On June 28, 1996, Sejong Special Metropolitan City entered into a real estate sales contract (hereinafter “instant sales contract”) with the Defendants, a co-seller, to purchase Korea-dong site in KRW 287,024,471,400, pursuant to the aforementioned basic agreement.

(4) After that, since December 198, when a promissory note, which was issued from Sejong around 1998, as the purchase price of the Nam-dong site, etc., was in default or the validity of the payment guarantee therefor was lost, Defendant Han-dong notified Sejong of the implementation of the instant sales contract, and notified that the instant sales contract was cancelled on August 19, 199 in the event that the agreement on financing was not implemented on August 14, 199, with respect to the financing of Sejong around 199. Since the details of the said agreement were not fulfilled, the instant sales contract was rescinded on August 19, 199.

(5) On February 7, 2001, Sejong filed an application for provisional seizure of each real estate over two occasions with the amount of KRW 30 billion among the claim for refund of the purchase price following the cancellation of the sales contract of this case as the preserved right, and the provisional seizure of each real estate was completed on February 6, 2001 with respect to the land Nam-dong on which each application was accepted and completed on February 7, 2001.

In addition, at around October 2001, Sejong District Court rendered a lawsuit against the Defendants at the Seo-gu Seoul District Court Branch, arguing the validity of the rescission of the instant sales contract, and sought the implementation of the procedure for ownership transfer registration pursuant to the instant sales contract on the land south-dong. Preliminaryly filed a lawsuit seeking restitution of KRW 1.8 billion out of the purchase price already paid as a claim for restitution following the rescission of the instant sales contract. The Seoul High Court Decision 2003Na2505 Decided February 18, 2005, which is the appellate court of the instant case, dismissed the main claim of Sejong-do, and accepted the conjunctive claim. The appeal was dismissed by the Supreme Court Decision 2005Da20620 Decided December 21, 2006, which is the appellate court of the instant case.

(6) Meanwhile, the creditors including the Plaintiff (Withdrawal) were released from February 2003 to October 2005 from the date when the Plaintiff (Withdrawal) applied for the entire order, and the sales contract of this case was rescinded, and the attachment and provisional attachment was taken against the Defendants as to the total amount of KRW 21,985,651,635 among the sales price refund claims against the Defendants.

(7) On March 2003, the Plaintiff (Withdrawal) filed a lawsuit against the Defendants for the payment of the discount loan in the bill and filed a final and conclusive judgment in favor of the Defendants, and filed an application for the attachment and assignment order against the Defendants on October 18, 2005, regarding “the amount exceeding KRW 21,985,651,635, out of the remainder of the claim amount in excess of KRW 200 billion, which is the claim amount, among the claim for the refund of the purchase price and the interest thereon, the original copy of which was the title of execution.” On October 18, 2005, the Plaintiff (Plaintiff) received the attachment and assignment order (hereinafter “instant assignment order”).

(8) The Plaintiff (Withdrawal)’s claim for the discounted loan in the bill against the Sejong Gyeong-Gyeong is KRW 221,545,571,530 as of October 21, 2005, and the claim for the refund of the purchase price against the Defendants in the Sejong Gyeong-si is the total amount of KRW 180,435,682,189 as of October 21, 2005.

(9) On February 21, 2007, Seoul Central District Court No. 2007Gahap14358, Oct. 21, 2005, the Plaintiff (Withdrawal) filed a claim against the Defendants at the rate of 180,435,682,189, the sum of principal and interest of all the claims as at October 21, 2005, deducting the amount of KRW 21,985,651,635, the remainder of which the seizure and provisional attachment is concurrent, from the total amount of KRW 158,450,030,554, which is the following day on which the assignment order of this case was served on the Defendants. In addition, the Plaintiff’s claim against the Defendants for damages for delay from October 22, 2005 to September 18, 2007, the Defendants’ claim against the Defendants, including the Plaintiff’s principal and interest of the entire claim, and the Defendants’ damages for delay against the Defendants’ joint ownership transfer.

(10) The first instance court of a lawsuit seeking full payment, etc. rejected the Defendants’ defense of extinctive prescription against the Plaintiff’s claim for full payment, and ordered the Defendants to pay the full payment amount, and ordered the Defendants to dismiss or dismiss the remainder of the Plaintiff’s claim. In response, both parties appealed to Seoul High Court 2007Na95637, Nov. 11, 2008. The appellate court rendered a decision in lieu of conciliation, and both parties accepted it and confirmed the decision. The main contents of the decision in lieu of conciliation are “(i) the Defendants jointly and severally jointly and severally pay to the Plaintiff (Withdrawal) KRW 128 billion until November 30, 2008. The Defendants paid the unpaid amount in addition to delay damages at 20% per annum from December 1, 2008 to the date of full payment. ② The Plaintiff (Withdrawal) immediately paid the above amount to the Defendants, and (i) the Defendants were returned the remainder of the deed of beneficial interest to the Defendants, and (iii) the Defendants withdrawn from the trust claim against the Defendants.

C. The lower court determined that the extinctive prescription expired on August 19, 2004, when five years have elapsed since August 19, 1999, which was the date of cancellation of the instant sales contract, by the succeeding intervenor’s claim against the Defendants, based on the foregoing factual basis.

Furthermore, the lower court determined to the purport that, in light of the following: (a) the first instance court of a lawsuit seeking the full amount, etc., rejected the Defendants’ defense of extinctive prescription regarding the claim for full payment by the Plaintiff (ex officio); (b) the Defendants rejected the Defendants’ defense of extinctive prescription and recognized the Defendants’ liability for repayment; (c) the Defendants paid KRW 128 billion, which is part of the payment for the purchase price return, on November 30, 2008, upon a decision in lieu of a final and conclusive conciliation to the Plaintiff (ex officio); and (d) the Defendants’ waiver of extinctive prescription at the time of receiving a decision in lieu of conciliation, or there was no explicit reservation that the waiver of extinctive prescription benefits at the time of payment is limited to the above payment, which is part of the sales price repayment obligations; and (d) the Defendants’ waiver of extinctive prescription benefits at the time of payment should not be presumed to have explicitly acknowledged the whole payment after the completion of extinctive prescription; and thus, (e) the Defendants’ assertion to the effect that the extinctive prescription defense cannot be accepted.

D. However, in light of the aforementioned legal principles and facts, the above determination by the court below is difficult to accept.

If an assignment order as to a part of a divisible monetary claim becomes final and conclusive, barring any special circumstance, an independent divided claim is established as to the entire claim part retroactive to the time when the assignment order was served on the garnishee (see, e.g., Supreme Court Decision 2007Da35152, Mar. 25, 2010). The Plaintiff (Withdrawal) received part of the claim for the refund of the purchase price against the Defendants in Sejong pursuant to the instant assignment order, and obtained a separate divided claim independent of the aforementioned part of the claim for the refund of the purchase price against the Defendants in Sejong pursuant to the instant assignment order. In the instant assignment order, the remainder of the claim for the refund of the purchase price against the Defendants in Sejong, which was not entirely determined in accordance with the instant assignment order, was not a subject matter of lawsuit such as the entire payment, etc., and

In addition, the Defendants received a decision in lieu of conciliation citing only 128 billion won, from October 22, 2005 to September 18, 2007, the following day after the assignment order of this case was delivered to the Defendants by the Plaintiff (ex officio) and from October 22, 2005 to September 18, 2007, which is the day after the last delivery of the assignment order of this case to the Defendants. Accordingly, the Defendants and the Plaintiff (ex officio) cannot be deemed to have not disputed the amount of the entire amount of the claim at the time, and the Defendants’ defense of extinctive prescription cannot be deemed to have been dismissed in its entirety.

In addition, according to the records, it is necessary to promptly settle the dispute that was pending in Seoul High Court (Seoul High Court 2007Na102900) due to the plaintiff's appeal after filing a lawsuit against the plaintiff (Withdrawal) for the claim for the delivery of the right to benefit of this case and winning the lawsuit in the court of first instance. Since the plaintiff's claim for the cancellation of ownership transfer registration as to the land remaining in the Republic of Korea filed by the plaintiff (ex officio), it would have been considerably hindered in the smooth promotion of the development project of the South-dong site that was in progress at the time due to the plaintiff's claim for the entire deposit in the lawsuit for the entire deposit, and such dispute, etc. is also necessary to promptly settle the dispute. Further, it seems that the provisional attachment of real estate was conducted as the preserved right prior to the application for the assignment order of this case by taking a final judgment in favor of the defendants' claim for the refund of 1.8 billion won out of the purchase price raised by the plaintiff (ex officio), it would be reasonable to accept the decision in lieu of the extinctive prescription decision.

Meanwhile, according to the records, the Defendants asserted that the part of the claim for the refund of the purchase price equivalent to KRW 21,985,651,635 against the Defendants in Sejong, including the Plaintiff (ex officio) that was seized and provisionally seized in a lawsuit such as full payment, does not extinguish by prescription since the interruption of prescription effect against the Defendants. Since this part was excluded from the subject matter of the assignment order, the above part of the claim for the refund of the purchase price amount equivalent to KRW 21,985,651,635 is only the subject matter of the claim for the payment to the collection creditors in the future, and the Plaintiff (ex officio) cannot claim for the full payment. However, the Defendants’ above assertion is not the purport of waiver of the prescription benefit despite the expiration of the statute of limitations, but it is clear that the part of the claim for the refund of the purchase price equivalent to KRW 21,985,651,635 is invalid without lapse of prescription period. It is reasonable to conclude that the obligor’s waiver of the statute of limitations effect of extinctive prescription effect as to the above part 251615.

As above, even if the Defendants repaid KRW 128 billion to the Plaintiff (Withdrawal) according to the decision in lieu of conciliation, in full view of various circumstances, such as the following: (a) the Defendants’ claim for the refund of the purchase price against the Defendants in Sejong Special Metropolitan City, which was entirely not entirely related to the claim for the refund of the purchase price; (b) the scope and contents of the rights and obligations established in the decision in lieu of conciliation in a lawsuit for the entire payment, etc.; and (c) the motive and circumstances leading up to the Defendants’ repayment in accordance with the decision in lieu of conciliation in a lawsuit for the entire payment, etc.; and (d) the Defendants’ intent to waive the benefits of extinctive prescription against the Defendants’ remaining claims for the refund of the purchase price against the Defendants in Sejong Special Metropolitan City, which was not entirely related to the assignment order, cannot be readily concluded to have expressed its intent to waive the benefits

Nevertheless, solely based on the circumstances indicated in its holding, the lower court determined that the Defendants renounced extinctive prescription benefits to the Defendants’ remaining claims to return the purchase price against the Defendants during Sejong by paying KRW 128 billion in accordance with the decision substituting conciliation. In so doing, the lower court erred by misapprehending the legal doctrine on the waiver of extinctive prescription benefits, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of 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.

Justices Park Poe-dae (Presiding Justice)