다수 채무에 대한 일부 변제시 변제의 충당과 시효중단 — 영미법상 partial payment와 acknowledgment 법리의 시사점 —: 대법원 2021. 9. 30. 선고 2021다239745 판결을 바탕으로

Abstract

This article is a critical review of a Supreme Court of Korea’s decision on 30 September 2021 (2021da239745). While the decision makes it clear that statutory appropriation of performance cannot be a justifiable basis for debt approval, in cases where there are multiple debts between the same creditor and the debtor and the latter pays an amount insufficient to pay all debts without designating the debts, it is decided that “the repayment has the effect of suspension of extinctive prescription as approval for all debts unless there are special circumstances”. The author agrees with the ruling’s rejection of the claim that the appropriation of performance can be an approval of debt. It is indeed inappropriate to equate statutory appropriation of performance as a basis for tacit approval of debts, as was decided in the original and appellate judgement. This is because in statutory appropriation of performance, there is neither any recognition of the existence of the debt nor any indication of a tacit agreement that the partial performance covers the remaining debt. The conclusion of the judgment, which recognized the part payment as a tacit approval for both debts in question, is also acceptable. However, with respect to the ruling and the generalization that, in part payment cases where the debt is not designated by the debtor “the repayment has the effect of suspension of extinctive prescription as approval for all debts unless there are special circumstances”, I am of the view that there is no legal basis for such generalization and cannot agree as it lacks reason, logic and rationality. In the author’s view, the additional rationale presented to the appellate court, namely that the legal meaning of the act of repayment should be interpreted by the totality of circumstances at the time of the repayment, is appropriate. In other words, it is necessary to individually determine whether there was an implied approval of all or part of the two debts by examining the totality of circumstances from the formation of the debt to the circumstances before and after the part payment.