단기소멸시효와 진행개시장애사유 – Boissonade 민법초안 및 일본舊민법으로부터의 시사 –

Abstract

The Korean Civil Act does not distinguish between the right to be applied for the period of ordinary extinctive prescription and the right to take for the term of extinctive prescription at commencement of extinctive prescription. In this regard, the commencement of both prescriptions should be judged based only on the unified standard of “the time it becomes possible to exercise a certain righ” in Article 166, Paragraph 1 of the Civil Code. The Supreme Court case in Korea does not consider the possibility of the creditor’s exercise of rights in determining the starting point of extinctive prescription. However, if the short-term extinctive prescription is judged by such standards, the precedent is not valid in that the 10-year extinctive prescription period for creditor rights in general is a short-term extinctive prescription period, and that creditors who could not actually exercise their rights should be protected. In short, the term “the time it becomes possible to exercise a certain right” should serve as a general standard that reflects the possibility of exercising his/her rights. Meanwhile, we should consider: in the Boissonade draft of the Civil Code, the extinctive prescription period of 30 years or the 20-year period of the Meiji Civil Code has been acknowledged to consider the circumstances where a creditor cannot exercise his/her rights. On the other hand, the Korean Civil Law did not take this into account. To put it in a nutshell, it is reasonable for our case to judge the commencement based on the relaxed criteria in consideration of the ‘expectation of a realistic exercise of rights’ regarding the claims for insurance, etc.