소멸시효이익의 포기-대법원 2013. 2. 28.선고 2011다21556판결과 관련하여-

Abstract

Article 162 of Korean Civil Code prescribes legal extinctive prescription, and Article 184 prescribes the right to give up the legal extinctive prescription profit. Generally, the acknowledgement is interpreted as a distinct recognition of an obligation for which the person making the admission is currently liable. Majority of academics and the Supreme Court consider the acknowledgement as a abandonment of legal extinctive prescription profit. However, the Supreme Court 2011da21556 case declares-in that case, plaintiff’s chose was already over legal extinctive prescription period, and defendant claimed, firstly legal extinctive prescription, preliminarily plea of set-off- that, ‘The first claim is accepted, and the preliminary claim’s statement of plaintiff’s chose is not a abandonment of legal extinctive prescription profit’. Basically, the set-off is a one-sided express and can’t be stipulated with any condition, because of legal stability. But, this theory should be applied to not accepted preliminary plea of set-off ? This article studied on this theme and checked the appropriateness of the cacse. By the way, fundamentally, the abandonment of the extinction profit is related to effect of extinctive prescription. If the period of extinctive prescription passed, the chose becomes extinct absolutely or relatively between creditor and debtor? I studied this theme together. In conclusion, preliminary set-off claim’s statement of plaintiff’s chose cannot be abandonment of legal extinctive prescription profit, thus the case’s declaration is valid. And the effect of legal extinctive prescription is relative.