불법행위로 인한 손해배상청구권의 소멸시효 - 한국과 일본의 민법개정안을 중심으로 -

Abstract

The current Civil Act of Korea and the current Japanese Civil Act has a similar system for extinctive prescription of a right to claim for damages resulting from an unlawful act. Article 766.1 of the current Civil Act of Korea provides that ‘the right to claim for damages resulting from an unlawful act shall lapse by prescription if not exercised within three years commencing from the date on which the injured party of his agent by law becomes aware of such damage and of the identity of the person who caused it’ Also, paragraph 2 of this provision provides that ‘the provisions of paragraph (1) shall also apply if ten years have lapsed from the time when the unlawful act was committed’. In addition, Article 724 of the current Japanese Civil Act provides that ‘the right to claim for damages resulting from an unlawful act shall lapse by prescription if not exercised within three years commencing from the date on which the injured party of his agent by law becomes aware of such damage and of the identity of the person who caused it. The same rule shall apply if twenty years have lapsed from the time when the unlawful act was committed’. Based on those provisions, they share dual-provision systems, such as subjective prescription system and objective prescription system, because each of them stipulates both subjective starting point of counting and objective starting point of counting. Meanwhile, the only difference between the current Civil Act of Korea and the current Japanese Civil Act, which have the same dual-provision systems, is the restriction on exercising a right, in particular, the long-term restriction on exercising a right. In other words, the short-term restriction on exercising a right for extinctive prescription of a right to claim for damages resulting from an unlawful act is 3 years for both the Korean and Japanese Civil Acts, while the short-term restriction on exercising a right is 10 years for the Korean Civil Act but 20 years for the Japanese Civil Act. However, a proposed amendment to the current Korean and Japanese Civil Acts was suggested. The draft of amendments to extinctive prescription of a right to claim for damages resulting from an unlawful act, suggested by the Korea Civil Act Amendment Committee, are as follows: amending ‘three years commencing from the date on which the injured party of his agent by law becomes aware of such damage and of the identity of the person who caused it ‘to ‘five years commencing from the date on which the injured party of his agent by law becomes aware of such damage and of the identity of the person who caused it (Article 766.1 of the Proposed Amendment); and changing the starting point of counting from ‘the date when the unlawful act was committed’ to ‘the date when the damage was occurred’ and expanding ‘10 years’ of the starting point of counting (as the long-term restriction on exercising a right) to ‘20 years’ (Article 766.2 of the Proposed Amendment) Meanwhile, with respect to the amendment to the Civil Act of Japan, the Civil Act Amendment Committee, the Civil Act (Law of Obligations) Amendment Review Committee, and, in particular, the Prescription Research Institute on overall prescription have suggested the amendment to the Civil Act of Japan. This study examines the drafts of amendment to the Korean Civil Act and that of the Japanese Civil Act in connection with extinctive prescription of a right to claim for damages resulting from an unlawful act. Also, it examines the conversion of the philosophy of civil act, emphasis on personality right and change in function of the tort law in order to consider and focus on any possible issues on extinctive prescription of a right to claim for damages resulting from an unlawful act. In addition, the purposes of this study are to examine the following issues, which may occur in connection with extinctive prescription of a right to claim for damages resulting from an unlawful act and then to propose a revision to the draft of amendment to the Korean Civil Act by examining the drafts of amendment to the Korean Civil Act and that of the Japanese Civil Act: ① matter on the provision system of a right to claim for damages resulting from default and a right to claim for damages resulting from an unlawful act; ② matter on extension of short-term restriction on exercising a right for a right to claim for damages resulting from an unlawful act; ③ matter on legal nature of long-term restriction on exercising a right for a right to claim for damages resulting from an unlawful act; ④ matter on the starting point of counting for extinctive prescription of a right to claim for damages resulting from a continuous, unlawful act; and ⑤ matter on necessity of provision on restriction on exercising a right for a right to claim for damages resulting from infringement of personality right.