소멸시효기간이 완성된 채무의 일부변제와 시효이익의 포기

Abstract

A practice in fair debt collection that caused suffering to ordinary people until recently is the “unreasonable act of inducing the wavier of extinctive prescription benefits” by collectors. In other words, the practice is used by debt collectors to induce the other party to explicitly or implicitly waiver the prescription benefits with deceptive methods or compulsion. In this case, a debt collector who purchases debts with already completed extinctive prescription induces the debtor to voluntarily pay part of the principal and interest by claiming, for instance, that ‘if you voluntarily pay even 10,000 won, we will greatly reduce the principal or let you make the repayment in small installments.’ In response, the debtor makes a part payment due to the lack of knowledge on the already completed extinctive prescription or to escape the suffering of debt collection. In this regard, the Ministry of Justice made efforts to introduce appropriate legal regulations by amending the Fair Debt Collection Practices Act. With such improvements in the system alone, it is expected that the harms of the so-called ‘unfair inducement of wavier of benefits of extinctive prescription’ will be substantially reduced. However, in this paper, the author would like to question whether the position of the Supreme Court in its precedent is correct, which has been admitted part payment of debts with completed extinctive prescription as a waiver of the prescription benefits on the remainder of the debts. It is undeniable that the debt collection industry could practice unfair inducement of wavier of benefits of extinctive prescription as such due to the case theory of the Supreme Court as above, which is deemed to have neither rationality nor persuasion, both legally and logically. Even in the case of part payment, in principle, it shall be deemed that debtors can still plead completion of extinctive prescription when there is a claim by a debt collection agency. Supreme Court precedents that contain incorrect legal theory of presumption should be abolished on the basis of appropriate cases so that decisions can be made on a more unified and fairer basis in the future. This will remain a task for courts to address after the amendment of the Fair Debt Collection Practices Act.