[1] Where the assertion of the completion of extinctive prescription cannot be allowed as an abuse of right against the principle of good faith

[2] Standard for determining whether a creditor has exercised his/her right within a “reasonable period” from the time the cause for an obligee’s failure to exercise his/her right objectively ceases to exist, and the scope of “reasonable period” in a claim for damages arising from a tort

[1] Articles 2 and 162 of the Civil Act / [2] Articles 2 and 766 (1) of the Civil Act

[1] Supreme Court Decision 2009Da66969 Decided September 8, 201 (Gong2011Ha, 2046) / [2] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077) (Gong2013Ha, 206429 Decided September 26, 2013)

Plaintiff 1 and 3 others (Law Firm Multiple, Attorneys Kang Jong-min et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2013Na2010930 decided September 5, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning. The unit of the deceased's family member was aware or could have been aware of the cause of the death of the deceased through the fact that the unit of the deceased committed suicide with low academic background and family poverty, and concluded an investigation into the death accident of the deceased, and subsequently, on October 21, 2009, the Military Medical Investigation Committee made a decision to ascertain the truth on the cause of the death of the deceased on October 21, 2009 (hereinafter "decision to ascertain the truth of this case") to find out that the death accident of the deceased occurred due to tort, such as lack of ability of the deceased to adapt to the deceased, continuous harsh treatment of the appointed soldiers, failure of the commander of the military unit to take protective measures, etc. Thus, the court below determined that the plaintiffs, a bereaved family member of the deceased, were unable to file a claim for damages against the defendant until the expiration of the extinctive prescription period, against the defendant's right of defense against the defendant.

2. Examining the relevant legal principles and records, it is reasonable to deem that the Plaintiffs had an objective disability that could not claim damages of this case against the Defendant until a decision to ascertain the truth of this case was rendered, but the lower court’s judgment that the Defendant may claim damages as a matter of course before the elapse of three years thereafter is acceptable for the following reasons.

A. The obligor’s exercise of the right of defense on the ground of extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principle of the Civil Act, and thus, if there is an objective obstacle that the obligee is unable to exercise its right, the obligor’s assertion of extinctive prescription cannot be allowed as abuse of rights against the principle of good faith (see Supreme Court Decision 2009Da66969, Sept. 8, 201, etc.)

Meanwhile, even in cases where there exists an objective obstacle to a creditor from exercising his/her rights, the creditor may stop the debtor’s defense of extinctive prescription only within a reasonable period from the time such obstacle was eliminated. Whether there was an exercise of rights within a reasonable period of time should be determined by comprehensively taking into account the relationship between the creditor and the debtor, and whether there were any special circumstances to delay the creditor’s exercise of rights. However, denying the completion of extinctive prescription based on the principle of trust and good faith should be limited to an exceptional limitation on the system of extinctive prescription, which takes the ideology of achieving legal stability, remedy for difficulties in proving evidence, and sanction for neglect of the exercise of rights. Therefore, “reasonable period” of the above exercise of rights should be limited to a short period of time as corresponding to the suspension of prescription under the Civil Act, barring special circumstances. Therefore, even in cases where it is inevitable to extend the period due to a very special circumstance in individual cases, such period cannot exceed three years, which is a short period of time under Article 766(1) of the Civil Act (see, e.g., Supreme Court en banc Decision 201232Da162962, May 296.

B. In light of such legal principles, the lower court should have deliberated on the relationship between the Plaintiffs and the Defendant, and whether there were any special circumstances to delay the exercise of the Plaintiffs’ rights, and determined whether the Plaintiffs should have limited a reasonable period of time corresponding to the suspension of prescription under the Civil Act in the case of the suspension of prescription under the Civil Act, or may extend the period of three years, which is the maximum period of time.

C. Nevertheless, solely on the grounds indicated in its reasoning, the lower court concluded that the Defendant’s exercise of extinctive prescription defense is not permissible against the principle of good faith. In so doing, the lower court erred by misapprehending the legal doctrine on a reasonable period during which the obligee should exercise its rights, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Min Il-young (Presiding Justice)