상사소멸시효에 관한 상법 제64조의 유추적용과 그 한계 - 판례이론의 재검토와 새로운 입론의 가능성에 대한 모색 -

Abstract

The Korean Commercial Act Article 64 prescribes to the effect that the right caused by the commercial act shall be subject to the extinctive prescription by elapsing 5 years if not exercising within that period of time. Herein it is hardly clear what the right caused by the commercial action means just from its textual stipulation. Notwithstanding the Commercial Act elucidates the commercial act by defining and enumerating them specifically, it is still ambiguous whether the right caused by such act means only the right arising directly from it or it also includes the right arising from closely associated relations with it, then how inextricably related occurrence may be required. The Korean Supreme Court Decisions takes the position that the Commercial Act 64 shall apply or analogously apply to the right generated from the commercial act and the right mutatis mutandis. Hence the Supreme Court understands the right under the Commercial Act 64 could be defined on the open-end basis so that it would be determined ex-post judicially by the trial court in the individual manner at the case hand, while leading to unpredictability on the parties concerned before the declaration the courtʼs ruling. Whether the commercial prescriptive period or civil prescriptive period shall apply the case at issue has crucial significance its application gives great impact on the partiesʼ property rights guaranteed by the constitution in that it restricts the exercise and maintenance of their property rights by limiting the time-period to it. From the standpoint that the Commercial Act 64 shall apply or analogously apply to the right generated from the commercial act and the right mutatis mutandis, the Korean Supreme Court Decisions set out the precedent to the effect that the right on the unjust enrichment occurred from the nullification or annulment of the commercial contract shall be basically subject to the civil extinctive prescription period under no special circumstance since it is generated intrinsically according to the Civil Act Article 741, however exceptionally it could fall into the commercial extinctive prescription under the Commercial Act Article 64, provided that it seeks the refund itself given on the basis of the commercial contract and its needs the expeditious resolution to the extent the commercial transaction requires if acknowledged in respect of the course or cause of rightʼs occurrence and the status or relation of the parties as well. As to ʻthe necessity of expeditious resolutionʼ, the cardinal element in accessing whether or not to befall in the commercial prescription category if in the case of the unjust enrichment case, the Supreme Court requires specifically sub-elements; ⅰ) the inextricable relation with the fundamental commercial contract, ⅱ) the occurrence from the substantially same cause with the commercial contractʼs legal relationship, while encompassing the element of equilibrium between parties and furthermore other elements if necessary at the case at hand. The Supreme Courtʼs attitude could hardly be appraised to be balanced against its other position on the retrieving right occurred from the termination of the commercial contract to which it applies the commercial prescription period just as a matter of law without enunciating the reason thereon. The Supreme Courtʼs unclear stance in dealing with the commercial prescription period could undoubtedly diminish the foreseeability of the parties concerned on which prescription period shall be applied in the individual case, resulting in aggravating the burden of persuasion from the complication of trial. All these matters might be caused by the ambiguous precedent put forward by the Supreme Court. Therefore we need to grapple the fundamental problems and streamline the divergent precedents requiring the case-by-case solution as systemic as possible and to simplify the entangled case theory in a bid to apply as easy as possible. The approach we may have to take appropriately in this situation is that we start from well-established interpretation of the Commercial Act Article 64 in deciding whether the right or issue shall be inclusive in the prescribed right under the Article. In this case it is more proper to elastically interpret the textual meaning and define the prescribed right as the right to encompass unambiguously or unvaguely, rather than to narrowly interpret and instead widely borrow the analogous concept in assessing the prescription period under total circumstances. It is much more recommendable to define ʻthe right caused by the commercial actʼ prescribed in the Commercial Act Article 64 as ʻthe right occurred fundamentally from the commercial actʼ in order to apply uniformly without resorting to assessing process in a individual manner. By mobilizing such a comprehensive definition of the right prescribed by the Commercial Act Article 64, we could uniformly understand the hotly debated rights, like the right on the unjust enrichment, yet to settle under the rule suggested by the Supreme Court by categorizing and delineating the more inclusive right as long as the right is generated fundamentally from the inherent commercial act, all the more necessitating the expeditious resolution of commercial disputes. This methodology is to conform to the global trend to legislate uniformly irrespective of commercial or civil case, much more to the reason or purpose of the extinctive prescription.