본래 채권의 시효소멸이 손해배상과 해제에 미치는 영향

Abstract

Article 167 of the Korean Civil Code stipulates that upon the completion of an extinctive prescription, its effect shall retroactively extend to the date of its initiation. The retroactive implications of the extinction have been relatively underexplored. This article aims to scrutinize the repercussions of the prescription on default remedies, notably damages and rescission, in instances where the original claim for performance in kind has expired due to extinctive prescription. A salient feature of Article 167's retroactivity pertains to the handling of accrued interest or delay damages related to the extinction of the claim for performance. Since Article 183 of the Civil Code already delineates that ancillary rights dissolve upon the main right's extinction, questions naturally arise about the redundancy of the aforementioned provisions. Other legislations commonly reference either Article 167 or Article 183, not both. The distinct significance of Article 167 can emerge when assessing the viability of remedies for defaults predating the prescription's conclusion. In terms of damages, established legal precedent dictates that the initiation for the prescription commences upon default, not from the date when the original claim for performance was actionable. For this rule to hold value, in a scenario where the claim for performance expires prior to the damage claim’s separate expiration date, the damage claim should remain unaffected from the retroactive extinctive effect. An exception to this rule is delayed compensation, which, as per Article 183, is nullified once the claim for performance’s extinction term is fulfilled. Conversely, the right of rescission, is nullified if the original claim for performance expires expires prior to the exercise of the rescission right. Yet, if the rescission right is invoked before the claim for performance’s expiry, subsequent restitution claims retain their dedicated limitation period. This ensures a minimized variance in limitation periods among default remedies, guaranteeing each remedy's efficacy, and preserving legal stability.