제척기간 경과로 인한 이익의 포기 -대법원 2022. 6. 9. 선고 2017다247848 판결의 평석-

Abstract

Many scholars argue that prescription(Verjährung) and the limitation period(Ausschlussfristen) are two different system of temporal limitations, so that the debtor cannot waive the legal interest of limitation period whereas she could when the prescription period has elapsed(§ 184 I of Korean Civil Code). Recently, Supreme Court of Korea ruled that the carrier can waive the legal interest of not being pursued in court, after the lapse of the limitation time(time bar) according to the § 841 I of Korean Commercial Code. The clause was introduced to implement the Hague-Visby rule with a little variation in 1991. It says the carrier who enters into a contract of carriage by water, shall be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered, but this period may be extended if the parties so agree. The Court ruled this one year period is limitation period(not prescription), and because it allows the extension of the period by agreement, the carrier could waive her legal interest of not being sued after the lapse of the period. In this article, the author supports this ruling and tries to explain the grounds of it. First, in terms of the effect of lapse of period, the prescription and the limitation period is not different from each other. In both cases, the substantive right extinguishes. The same goes to the purposes of the prescription and the limitation period, because both institutions aims at legal certainty. Therefore, as a general rule, we cannot say the clauses in the Civil Code about the prescription are not applied to the limitation period by analogy. Second, the § 841 I of the Commercial Code allows the extension of the limitation period by agreement of the parties. It means if the debtor wants, she could waive her legal interest before the expiration of the period. This show the idea that the debtor’s interest is more important than the legal certainty in this context. The same idea should be applied when the limitation period lapses. It is the same idea behind the rule of § 184 I of the Civil Code. Third, if the waive of the debtor has an adverse effect on public policy which individual limitation period tries to protect, the waive should be forbidden. However, in the case of § 841 I, the carrier’s waive of her legal interest does not contravene any public policy other than the legal certainty, which steps back already by allowing the extension by agreements. Therefore, the Supreme Court reached a reasonable conclusion when it allowed the waiver by the carrier after the passage of limitation period.