소멸시효에 관한 역사적 고찰: Savigny의 견해를 중심으로

Abstract

Time has great influence on one’s legal status. It sometimes gives a person a right, and sometimes takes it back. Under the Roman law tradition, many European civil laws have provisions which regulate the periods of prescription. According to the laws, some rights are subject to prescription by the expiry of a period of time. It is called the extinctive prescription. After the expiry of the period of prescription, the debtor’s duty continues its existence, but the debtor is entitled to refuse performance. It is the general effect of the extinctive prescription under the Roman civil law, and the present German civil law has kept the tradition. Some present civil laws, however, regulate differently. In these cases, the debtor’s duty ceases to exist as the effect of the prescription. When Korean legislators made their civil law, they modeled much of them after German civil law. As far as the extinctive prescription is concerned, there is difference between the two. As abovementioned, under German civil law, the debtor’s duty continues its existence even if the period had expired. Korean civil law actually keeps silence about the general effect of the prescription. In the mean time, the Korean court and law scholars say that the debtor’s duty ceases to exist as the effect of the prescription. If then, Korean civil law should establish its own theoretical consolidation and not have a relish of German civil law.