단기소멸시효기간의 적용범위

Abstract

The main purpose of the Short-Period Prescription is the legal certainty. It is ironic that it is uncertain whether the Short-Period Prescription is applied or not at any cases. The Prescription Periods are simplified in Germany or Japan considering of legal certainty. Amendments of Korean Civil Code, however, submitted in 2010 are not passed. Therefore, it is required that the range of application of Short-Period Prescription rules are explicit. The position of the Korean Supreme Court is not clear which claims are extinctive based on Civil Short-Period Prescription, Commercial Prescription or ordinary prescription statute. It entirely depends on the concrete fact relation. It is difficult to find legal theory about the scope of the Short-Period Prescription. Korean Supreme Court consider the issue of a range of application of the prescription term as a matter for determination by cases. It is not desirable from the legal stability point of view. Upon investigations of the Korean Supreme Court decision, it depends on the wording of Short-Period regulations, substance or contents of the claim, substantial economic relationship, serving same economic objects(or not), economic benefit expectation of both parties etc. At least, in the case of incidental or accessory claim such as Claim for Damages or Claim for Liquidated Damages, it is desirable that claims are extinctive according to same prescription regulations, from the point of view such as economic object, substantial relevance, expectation of the creditor or debtor, institutional objectives of that incidental claims. It is desirable that Claim for Damages and Claim for Liquidated Damages are extinctive according to same prescription regulations, because they serves same economic and social object. In the case of the surety obligations, it is not appropriate that the creditor can exercise right to surety for longer period of time than to principal obligor.