[1] In a case where real estate owned by another creditor is sold in the real estate auction procedure, and the proceeds therefrom are distributed to the creditor holding a right to collateral security, the obligation of which the extinctive prescription has already expired, and the debtor fails to raise an objection until it is appropriated for the repayment of the obligation, whether the obligor may be deemed to waive the extinctive prescription benefit for the claim (affirmative in principle), and whether the obligor may waive the benefit of extinctive prescription benefit for part of

[2] In a case where Company A, a debtor, did not raise any objection against receiving the distribution of the claim with the right to collateral security, the extinctive prescription of which has been completed, the case affirming the judgment below that Company A waived the extinctive prescription interest with respect to the remainder of the claim except for the portion of objection raised by Byung, a creditor of the company A by subrogation

[3] Whether a general creditor with respect to the debtor may assert the completion of the extinctive prescription on behalf of the debtor within the extent necessary to preserve his/her own claim (affirmative)

[1] In case where real estate owned by another creditor was sold in the real estate auction procedure, and the price for which the extinctive prescription has already been completed, and the debtor did not raise any objection until it was appropriated for repayment of the obligation, barring special circumstances, such as the debtor was unaware of the progress of the auction procedure, the debtor may be deemed to have renounced the benefit of extinctive prescription against the claim, and the waiver of the benefit of extinctive prescription may also be limited to the portion of the separate debt.

[2] In a case where Company A, a debtor, did not raise an objection against receiving the distribution of the claim with the right to collateral security for which the extinctive prescription has expired, the case affirming the judgment below which held that Company A did not have obtained unjust enrichment in relation to the partial amount of distribution on the ground that Company B’s remaining claim except for the portion of objection raised by Byung, a creditor Byung, by subrogation of the company A, shall be deemed to have waived the prescription interest

[3] Where the extinctive prescription has expired, general creditors against the debtor cannot assert the extinctive prescription independently in the position of the creditor, but may assert the extinctive prescription by subrogation of the debtor to the extent necessary to preserve his/her claim.

[1] Article 184(1) of the Civil Act / [2] Articles 184(1) and 741 of the Civil Act / [3] Articles 162 and 404 of the Civil Act

[1] Supreme Court Decision 2001Da3580 decided Jun. 12, 2001 (Gong2001Ha, 1586), Supreme Court Decision 2000Da25484 decided Feb. 26, 2002 (Gong2002Sang, 781), Supreme Court Decision 2010Da6345 decided May 13, 201 (Gong2010Sang, 1120) / [3] Supreme Court Decision 97Da22676 decided Dec. 26, 197 (Gong198, 403Sang, 207)

Plaintiff (Law Firm Law, Attorneys Hong Jin-jin et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Ro-Hy, Attorneys Kim Woo-soo, Counsel for defendant-appellant)

Suwon District Court Decision 2011Na24545 decided November 16, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

In the real estate auction procedure requested by another creditor, if the real estate owned by the debtor is knocked out and the price for which extinctive prescription has already been completed is distributed to the creditor holding the right to collateral security, and the debtor has not raised any objection until it is appropriated for the repayment of the obligation, barring special circumstances, such as the debtor was unaware of the progress of the auction procedure, the debtor may be deemed to have renounced the benefit of extinctive prescription against the claim (see, e.g., Supreme Court Decisions 2001Da3580, Jun. 12, 2001; 200Da25484, Feb. 26, 2002; 2010Da6345, May 13, 2010). Meanwhile, the waiver of the benefit of extinctive prescription can be deemed as part of the obligation (see Supreme Court Decision 86Da2107, Jun. 23, 1987).

In light of the above legal principles and records, the court below is just in holding that the defendant's unjust enrichment in relation to the amount of distribution should not be acquired on the ground that the defendant, who is the debtor in the auction procedure of this case, did not raise any objection against the distribution of KRW 40,00,00,00 with the claim of the right to collateral security for which the extinctive prescription has been completed, and that the claim of KRW 26,66,666,66, excluding the claim of KRW 13,333,34, which the plaintiff, who is another creditor of Green Community, raised an objection by subrogation of Green Community, should be deemed to have waived the claim of KRW 13,33,334, which had been raised by subrogation of Green Community. There is no error of law

2. As to the Defendant’s ground of appeal

Claims arising from not only a commercial activity but also a commercial claim to which the five-year extinctive prescription under Article 64 of the Commercial Act applies to both parties. Such commercial activity includes not only the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, but also ancillary commercial activity carried on by merchants for business (see Supreme Court Decisions 93Da54842, Apr. 29, 1994; 2007Da91251, Apr. 10, 2008; 2007Da91251, Apr. 10, 2008; 2007Da91251, Apr. 10, 2008).

In addition, when the extinctive prescription has expired, general creditors against the debtor cannot assert the extinctive prescription in their status as creditors, but can assert the extinctive prescription by subrogation of the debtor to the extent necessary to preserve their own claims (see Supreme Court Decisions 97Da22676 delivered on December 26, 1997; 2005Da11312 delivered on March 30, 2007, etc.).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below is just in holding that since the company's act of borrowing money from the plaintiff, which is a merchant's public interest, constitutes commercial activities since the act of borrowing money from the plaintiff was presumed to have been conducted for the company's business, and the defendant's claim for loans against the green public interest is subject to the five-year extinctive prescription period, the period of extinctive prescription expired on July 20, 2007. Since the plaintiff used an objection as to KRW 13,33,34 out of the defendant's claim for the green public interest by subrogation of the public interest on the date of distribution of this case, and thus, the defendant's claim for the green public interest was extinguished within the scope of the statute of limitations period, contrary to what is alleged in the grounds of appeal

3. Conclusion

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

Justices Park Poe-dae (Presiding Justice)