「유럽계약법원칙」의 소멸시효규정 ― 우리 민법에의 示唆를 덧붙여 ―

Abstract

This article deals with the provisions on extinctive prescription (Chap. 14) of the Principles of European Contract Law (“PECL III”), which was published in March 2003 as one of possible frameworks for a future Draft European Civil Code. It is made of two parts. One is the summary of the prescription rules of PECL III with its underlying policy considerations, and the other is evaluation from the viewpoint of a Korean civilist, specially in terms of the revision work on the Korean Civil Code (“KCC”) now in process. An important feature of the rules in Chap. 14 of PECL III is that the prescription regime is very streamlined compared to that existing in many European systems. In particular, there is only one period of prescription (3 years) for all claims, except those based on judgement (10 years)(Arts. 14:201, 14:202). The hardship which this short general prescription period may cause to the creditors, who are barred by prescription although able, even after the lapse of many years, to establish the claim, should be counterbalanced by applying the discoverability criterion for the running of the prescription period. So Art. 14:301 of PECL III provides that the running of the period of prescription is suspended as long as the creditor does not know of and could not reasonably know of the identity of the debtor and the facts giving rise to the claim. It is because unless the creditor has previously had a fair chance of pursuing the claim, prescription, which can effectively amount to an act of expropriation for the general interest of legal certainty, can hardly be justifiable. Meanwhile, to prevent prescription from being postponed for decades because of the rule on reasonable discoverability, a 10-year maximum period (“long-stop”) after which no claim may be brought, regardless of the creditor's knowledge, is necessary (Art. 14:306). PECL III does not use the term “interruption,” but introduces the concept of “renewal” of the period, the essence of which is that a new period of prescription begins to run afresh. The renewal occurs, either when the debtor acknowledges the claim, or when the creditor reasonally attempts execution of his claim (Arts. 14:410 and 14:402). And the pending of judicial proceedings is decided to cause no renewal, but suspension of running of the prescription period (Art.14:302). As a whole, the author is not persuaded to change the main features of the prescription rules of KCC in line with those proposed by PECL III. KCC has a general prescription period of 10 years, and the typical timidity and slowness of Korean people in pursuing their legal rights tells us not to shorten this short prescription period, compared to that adopted in many European countries (20 or 30 years). And the “reasonable” discoverability criterion, as a subject one, would necessarily make the application of the prescription rules so uncertain that it may have to bear the danger to deprive the prescription regime of its justification.